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BRIEF AND ARGUMENT 

OF 

HARRY J. CANTWELL (of Crews & Cantwell, Attor- 
neys-at-law, St. Louis, Mo.) TO THE COMMIT- 
TEE ON INDIAN AFFAIRS OF THE HOUSE OF 
REPRESENTATIVES AND TO THE COMMIT- 
TEE ON INDIAN AFFAIRS OF THE SENATE 
ON THE RIGHTS OF ALL PERSONS (EXCEPT 
THE FORMER SLAVES) TO TRANSFER FROM 
THE ROLL OF LIMITED RIGHTS, CALLED 
THE "FREEDMEN ROLL" OF CHOCTAW- 
CHICKASAW TRIBES TO THE ROLLS OF CIT- 
IZENSHIP.— 6 ist Congress, 2d Session. Referring 
to: H. R. 19279, H. R. 19552, S. 5875. 



6 



Mr. Chairman and Gentlemen of the Committee: 

I appear for a number of persons who are enrolled upon 
the so-called "Freedmen" rolls of the Choctaw and Chicka- 
saw tribes. The classification of their names upon such 
rolls limits their rights, under the construction placed upon 
the Acts of Congress by the Interior Department and by the 
Dawes Commission "to land equal in value to 40 acres of 
the average allotable land of the Choctaws and Chickasaws 
Nations," when it is self-evident that most of the persons 
so classified were never, and could not have been, "Freedmen 
of the Choctaw and Chickasaw^ tribes," but are in fact, and 
under the laws of the United States and the tribes, full 
members and citizens of the Choctaw and Chickasaw tribes ; 
and I assert it was the intention of Congress to give these 
people full and equal rights with other members of the tribe, 
which intention has been nullified by erroneous construction 
of the intent of the laws. These people are citizens of the 
Choctaw-Chickasaw tribes by birth, by the exercise of tribal 
rights, by having been subject to tribal jurisdiction and by 
the perfomiance of tribal duties, and many of them it is 
generally conceded, have actually a preponderance of actual 
Indian blood. I present to the committee a copy of a me- 
morial lately presented to the President of the United States 
by J. Milton Turner and Wilbur E. King, together with a 
letter of the President, transmitting a communication of 
the Secretary of the Interior replying to the memorial, ac- 
companied by the text of a number of decisions of the De- 
partment, and the Attorney General. These decisions refer 
to the limitation of time in the Act of July i, 1902, and to 
the construction of the Department that the "Freedmen 
roll" is not a roll of citizenship as the bar preventing many 



of these people, who are conceded by the Department to be 
citizens, from being properly enrolled. 

I shall attempt to show that an erroneous or fradnlently 
designed definition of the words "members" or "citizens" 
was inserted in the Atoka agreement. That this definition 
in the Atoka agreement was adopted by Congress by the 
Act of July I, 1902, inadvertently, without any intention by 
Congress to thus nullify and destroy the intent of Congress 
so plainly, before then expressed, and without consideration 
of the wide and disastrous effect upon the just rights of so 
many people. 

I shall endeavor to show that while the McGuire bill, 
known as H. R. 19279, or the Barthold bill, H. R. 19552 
(which last bill is identical with that introduced by Senator 
Dick, known as Senate Bill 5875) would all do much to 
remedy the injustice that has been done some of the people 
on the Freedmen roll, yet full and complete justice cannot 
be done in accordance with the intent of Congress and with 
the underlying principles of humanity, and justice, other 
than by the transfer from the so-called Freedmen roll of the 
Choctaw and Chickasaw tribes, to the roll of citizens and 
members, of the names of all persons on said roll wdio were 
not themselves slaves at the time of the Treaty of Fort 
Smith in September, 1865, and by also permitting the trans- 
fer to said full citizenship roll of such particular individual 
slaves who have acquired full membership by marriage 
since September, 1865, leaving said so-called "Freedmen" 
roll as, of right and law, it should be : 

A roll only of those persons who were slaves of the Choc- 
taws and Chicka^aws in September, 1865, who have not ac- 
quired full rights by marriage since. 

And by the enactment of a definition of the word "Freed- 
men" as used in the acts relating to the Choctaw and Chicka- 



Source njaJknovra 



saw tribes to include only those individuals who ivere them- 
selves held in slafuery. 

I suggest these changes in the proposed legislation as 
being necessary to protect not only the rights of people who 
have been denied their rights, but as necessary in order to 
protect the United States Treasury from being unjustly 
mulcted of over $600,000.00 as the result --^ ^' '- im- 
proper classification (if the word "Freedmen" is continued 
to be misapplied) as the result of the judgment of the Court 
of Claims in the case of the United States v. Choctaw Na- 
tion et al. (Chickasaw Freedmen case), where it was held 
that under the reference by Congress to the Court of Claims 
of the matter in the Act of 1902 and under the treaty, the 
Ihiited States was liable to the Chickasaws for the value of 
the lands granted "Freedmen." said judgment CONFINING 
THE WORD FREEDMEN, however, as only to apply to 
those who were formerly held in slavery, and, improper as 
I believe the judgment to have been, as made upon an in- 
sufficient presentation of all the laws and facts, yet its ap- 
plication will become POSITIVELY FRAUDULENT 
upon the United States if the Freedmen roll of the Chicka- 
saws is not made what it should be, i. e., a roll of the former 
slaves, AND THE OTHERS, NOW IMPROPERLY on 
said rolls, are not transferred to the roll of citizens or mem- 
bers, where they rightfully belong. 

I call the attention of the Committee, as affectino- the 
expediency of the passage of this bill (as there is no valid 
argument against it, except that of expediency) to the 
following facts : 

First, every person now on the rolls of the "Full" blood ^ 
of Chocktaw and Chickasaw tribes and every person on 
the rolls as Choctaw or Chickasaw by marriage, has al- 
ready received an allotment of 320 acres of land, each, and 



it is only the right to further distribution of lands to them, 
above 320. acres of land already received, which can in any 
way be affected by Congress, granting to these citizens who 
have been wrongfully excluded, sufficient of the lands yet 
remaining to equalize them. 

Second, that in addition to the coal and asphalt lands 
reserved by Congress and the timber reserves, there yet re- 
main in the Choctaw-Chickasaw country more than i,- 
500.000 acres available for the purposes of allotment to 
these claimants. 

Third, that the greater part of the persons whose dis- 
tributions (above the 320 acres already received) would 
be diminished are not, as generally supposed, full blood 
Indians. 

On the approved rolls of "Full Blood" Choctaw^s, appear 
16,227 names. Only 6,498 of these names are FULL 
BLOODS. The remainder have all degrees of Indian 
Blood from one-half to 1/128. Not one out of 20 of the 
mixed bloods classified as "FULL" BLOODS has as much 
as ^ Indian, there are more with 1-16, 1-32 and 1-64 than 
there are with \ blood. In the new^ born Choctaw "full 
bloods" roll out of a total of 1,583, only 345 are really full 
blood. There is also on the roll of Choctazvs by marriage 
who have each and all been given full rights and already 
320 acres each, 1,672 persons. Out of a total of 19,482 
persons given already 320 acres of land as Choctaw citizens 
of full blood and by marriage, 6,843 o"^y ^^^ really full 
blood Indians — that is about one in three. 

On the Chickasaw rolls the same general ratio appears, 
and some minors being enrolled on "blood" rolls as "A. 
W."— a// white. 

Now, this distribution has been made upon what theory? 
Upon what legal theory and what was the consideration 



and motive moving Congress to distribute this property 
to these people ? There can only be three : 

One was to distribute it in accordance with the provisions 
of former treaties (although Congress was not bound to 
regard former treaties) to the "Indian and his descend- 
ants." Another was to distribute upon the theory that 
every human being born to the environment of the tribe, 
and all those adopted into the tribe, by marriage, by formal 
act or custom (when the tribal relation was broken up, and 
the collective right of the tribe to occupancy of the land was 
gone) were entitled, morally, to equal distribution of that 
which the tribe had heretofore, collectively claimed or 
enjoyed. 

And the Third : 

That those who, by reason of the Indian life and en- 
vironment had been deprived of the capacity, which other 
citizens of this Republic possess, to earn a livelihood, 
should be given a start and the means toward self -main- 
tenance and existence as individuals. 

If Congress intended that distribution should be made 
to the "Indian and his descendants" which is the title 
originally conferred by the Treaty of 1830. then distribu- 
tion cannot be denied many of these claimants, for they are 
as much "descendants" of Indians, as are those of mixed 
white and Indian blood. 

If Congress intended that distribution be made based 
upon membership in the tribe, then it cannot be denied to 
those of mixed negro and Indian blood, or those even of 
full negro blood born in the tribe after slavery was abol- 
ished, when these people had enjoyed all of the rights which 
each member of the tribe had enjoyed to community 
property. 

If Congress intended distribution to be made to the help- 



less denizens of the territory in order to prevent them from 
becoming charges upon pubhc charity upon the theory that 
they were and are "wards of the Nation," then what class 
is more deserving, what class is more helpless than the 
claimants and are not the progeny of the wards of the 
Nation equally entitled with the wards to the guardians' 
bounty ? 

And further: 

If Congress intended distribution to be made in com- 
pliance with the provisions of the Treaty of 1866, then full 
distribution cannot be denied to any except those particular 
individuals who were themselves slaves and had not ac- 
quired full rights by marriage since 1866. 

Applying either or all of the above motives for distribu- 
tion upon what grounds can these claimants be excluded? 

The statement was made by Mr. Cornish, the attorney 
for the Choctaw-Chickasaw Indians, in the hearing before 
the Senate Committee of the 59th Congress, second session 
(Senate Document 257, at page 251) that "There has not 
only not been any discrimination, so far as the Choctaws 
and Chickasaws are concerned, against their slaves, but 
they have done more for their slaves than is the case in 
any other southern country." 

I say there never was made considering the erroneous 
' impression sought to be created a more palpably false state- 
ment than that. The Choctaw-Chickasaws agreed in 1866, 
to give their former slaves 40 acres in area of land. They 
have actually been given 20 acres within the last 4 years, 
and the right to purchase at the appraised value 20 acres 
additional when the regulations for the purchase shall be 
prescribed by the Secretary of the Interior, and these regu- 
lations arc not yet prescribed. But it is not with the former 
"slaves' that we are concerned. We are concerned with 
the children of Indian descent, born since slavery, born in 



the tribe, to the citizenship of the tribe, who by reason of 
an admixture of free but negro blood, have been denied 
their right. 

The statement of Mr. Cornish is also repeated in effect 
in a communication by F. E. Leupp, Commissioner of In- 
dian Affairs, to the Secretary of the Interior under date 
of January 3, 1907, (See page 122, same document) "The 
Choctaw and Chickasaw Nations have been far more gen- 
erous to their former slaves and their descendants than the 
white people to their ex-slaves. They have allowed them an 
interest in their lands, which the white slave-owners did not 
do, and have permitted them to use the lands of the nations 
for more than 40 years without paying one cent of rent 
therefor." 

It is true that the Choctaw-Chickasaws, before civiliza- 
tion made the lands valuable, did permit the former slaves 
to occupy as much land as they chose. The former slaves 
were among the few who had industry enough to cultivate 
the lands. But we are not seeking to take away from the 
Choctaw-Chickasaws or the fomier slave owners of the 
Choctaw-Chickasaw tribe any of their lands. The Indian, 
or the Indian-white, under all of the decisions, had no right 
except the right to occupancy and this he did not fully 
exercise. Prior to the distribution of these lands in sever- 
alty, these people were permitted to occupy the lands of 
the tribe, they voted in all of the elections, they were eli- 
gible to hold any office in the Choctaw Nation, except 
principal chief, and district chief. There is no test of 
citizenship which can be applied to them to deny them their 
rights except the mere arbitrary change of a roll of full 
rights to a roll of limited rights. 

I repeat : The simple enrollment of these people upon 
the freedman roll established beyond controversy their citi- 
zenship, and while if they be former slaves, their rights 



8 

u der a treaty may be limited to 40 acres; if they be not 
f( -mer slaves, they are entitled to equal distribution of the 
la d under the law. There is not one incident of citizen- 
sh ) except the mere absence of enrollment upon the citizen- 
shi rolls (for which they are not to be blamed) that these 
pec :le have not enjoyed. When lands came to be dis- 
tril: tted in severalty, the mixed white-Indian awarded bv 
the »ounty of the Government, three hundred and twenty 
acre apiece and they are most active in attempting to 
deny to these claimants, citizens of the tribe, where there 
is no legal limitation upon their right, the right to equal 
distri ution. 

Thjn)ughout this whole controversy the attempt has been 
made to compare this demand of the negro-Indian citizen 
to the demand of the slaves in the south to the land of his 
former master. There is no parallel in the two cases what- 
ever, a, d it must be remembered that it is only in the Choc- 
and CI . zkasaw Nations where this discrimination against 
the neg o-Indian appears. The Creek freedmen, has al- 
ways bt ai recognized as a citizen of the tribe and has been 
awarded full and equal rights with the Creek Indian to the 
lands an \ money of the tribe; so with the Seminoles, and 
so, even nally, after long litigation, with the Cherokees. 
There is iJbsolutely no distinction in the distribution of the 
lands and moneys of the Cherokee Nation between the full 
blood Ind an and the citizen of mixed negro and Indian 
blood, or ' le citizen of full negro blood. He who is born 
in the Chei )kee tribe or Creek tribe, or Seminole tribe of a 
marriage b a bell and book has no greater right than the 
bastard bor. ^ to the allegiance of the tribe. The attempted 
analogy of Hie claim of the former slave to the land of his 
former mas' r, to this claim of the negro-Indian, does not 
exist. 



It must be remembered that these lands are pubHc lands, 
that they are about to be distributed through the bounty of 
the government alone, to the denizens of a certain territory 
and the discrimination is made against this large body of 
citizens born to the allegiance of the tribe and their right 
to equal distribution is denied for no reason of morals or 
of the law, but simply because of the distinctions invented, 
or applied by the Dawes Commission, aided therein by the 
industry of the attorneys who were paid $750,000 for the 1^ 
purpose of limiting the number of persons who should be 
entitled to these benefits. There is only one State in the 
South which has any great quantity of lands or which has 
attempted to give to any its citizens public lands. That 
State is Texas. Since the war, the State of Texas has 
granted to negro and white alike, to bastard and legitimate 
the right to take up without price, 160 acres of land if the 
head of a family, and 80 acres of land if he is a single man. 

The swamp lands of the national government that have 
been donated to the States, have been thrown open to pur- 
chase at a low price to all citizens alike without any dis- 
crimination whatever. Although the old republic of Texas 
denied the right to persons of African descent to take up 
the lands after the war and the enactment of a new con- 
stitution every person without discrimination, was given an 
equal right to select a homestead in that State. Art. 4160, 
Vol. 2, p. 1472, Saylor's Texas Civ. Stat. 1897, is as fol- 
lows: 

"Every person who is the head of a family and without a 
homestead shall be entitled to receive a donation from the 
State of Texas of 160 acres of vacant and unappropriated 
public land, upon the conditions and under the stipulations 
herein provided." (Constitution, Art. 14, Sec. 5.) 

Note. — The conditions thereafter set out provided that 



lO 

the method of appHcation shall be by an afiidavit, that the 
applicant is without a homestead and that he has actually 
settled upon the land he claims." 

Article 4161 — "Every single man of the age of 18 years 
or upward, shall be entitled to receive a donation from the 
State of Texas of 80 acres of vacant and unappropriated 
public land." (Upon the same conditions.) 

If the unoccupied swamp lands of the State of Missouri, 
or of Mississippi or of Florida, were about to be distributed 
by those States today to the respective citizens of the State 
and any one of those States should attempt to discriminate 
against the citizen born in that State because of his mixture 
of free, but negro blood, the fourteenth amendment to the 
Federal Constitution would be and could be successfully in- 
voked, and there would be such a protest raised that it 
would never be possible to effectuate any such purpose. 

And yet under a Republican administration of the Na- 
tional Government which Government and which party has 
always had a special care for the welfare of the negro, this 
outrage against the right of the negro-Indian citizen has 
been perpetrated and the question has become so befuddled 
by hypercritical distinctions that perfectly sincere and hon- 
est men imagine that this is a scheme of the negro-Indian 
to take away from others their individual rights and ap- 
propriate them for himself. 

I repeat this is the distribution of national property 
among the citizens of a particular district. No question of 
right of private inheritance as an heir has any relevancy. 
No question of legitimacy of issue is relevant. Even the 
bastard is born to allegiance and citizenship to its duties and 
to its rights. 



II 



THE INTENT OF CONGRESS WAS TO CONFER 
FULL CITIZENSHIP RIGHTS AND EQUAL DIS- 
TRIBUTION TO THE NEGRO INDIAN. 

The right of an individual member of an Indian tribe to 
property has no relation whatever to our ideas of individual- 
istic ownership of property. The individual owned nothing. 
He had the right common to all others to the use of prop- 
erty, but he ozmied or had title, as we understand the words, 
to nothing. The conflict between the community idea and 
the individualistic idea of property was on in the Indian 
Territory. In 1890 the laws of Arkansas had already been 
extended over the Indian Territory. The United States 
was exercising authority to punish many offences, the tribal 
power and the tribal organizations was being destroyed. 
The Cherokees, by their tribal organization, attempted to 
discriminate between the negroes and the other members of 
the Cherokee tribe in the distribution of proceeds and avails 
of the lands of the Cherokee tribe which had then arisen and 
to deny the negroes the right to any share in such funds. 
Congress, and the Court of Claims enforcing the legislation 
of Congress, in the case styled Whitmire, Trustee, Cherokee 
Freedmen v. Cherokee Nation (which use of the word 
"Freedmen" was unfortunate because the rights of all per- 
sons of color in the tribe were involved), decided that no 
distinction was to be made between persons of black color 
and persons of red color in the distribution of the property 
owned by the tribe, when it should come to be divided per 
capita. That case stopped any further attempts at that 
time to discriminate against the negro member of any of the 
tribes, although the Creeks and Seminoles had never shown 
any disposition to discriminate against the black member of 
those tribes. 



12 

When Congress in 1893 and in 1896 passed the several 
acts hereafter referred to, Congress evidently had in mind 
this free use of the word "Freedmen" to embrace persons 
of color. Technically it was never proper to be applied to 
any but one born slave and made free, but it had been ap- 
plied in the Cherokee case, and its then application to all 
persons of color born free or in slavery, was common in the 
Indian Territory. Congress, by the act of March 3, 1893, 
declared its purpose to create a State of the American Union 
out of the Indian Territory. While it used the word "In- 
dian" as the persons to whom allotment was contemplated 
upon extinguishment of the tribal title, it is certain that 
members of the Indian tribe was intended, and it is not to 
be supposed that Congress intended to create a State to be 
populated by red men who should be the proud possessors 
of princely incomes derived from tribal property and to inject 
into such a State an almost as large number of black nomads 
whose right to use and enjoyment of the tribal lands had 
been universal and to deprive them of the benefits which 
would accrue from individual distribution. He surely was 
an "Indian" if a member of an Indian tribe, and Congress 
in this expressly declared : 

* * * "Neither the provisions of this section nor 
the negotiations or agreements which may be had or 
made thereunder shall be held in any way to waive or 
impair any right of sovereignty which the Government 
of the United States has over or respecting said In- 
dian Territory, or the people thereof, or any other 
right of the Government relating to said Territory, its 
lands or the people thereof." — Sec. 16, Act March 3, 
1893 (27 Stat, 645.) 

This act was followed by the act of June 10, 1896, which 
distinctly conferred full rights as members and citizens upon 



13 

the Freedmen (using the word to designate all living persons 
of color) in the Five Civilized Tribes of the Indian Ter- 
ritory. 

The Act of June lo, 1896 (29 Stat. L., 321) : 

* * * "That said Commission is further author- 
ized and directed to proceed at once to Jiear and deter- 
mine the application of all persons who may apply to 
them for the right of said applicant to be so admitted 
and enrolled. * * * That in determining all such 
applications said Commission shall respect all laws of 
the several nations or tribes, not inconsistent with the 
laws of the United States, and all treaties with either 
of said nations or tribes, and shall give due force and 
effect to the rolls, usages and customs of each of said 
nations or tribes." 

"And the rolls so prepared by them shall be hereafter 
held to be the true and correct rolls of persons entitled 
to the rights of citizenship in said several tribes. * * * 
That the said Commission, after the expiration of six 
months shall cause a complete roll of citizenship of each 
of said nations to be made up from their records and 
add thereto the names of citizens n^hose rights may be 
conferred under this act, and said rolls shall be and are 
hereby made rolls of citizenship of said nations or 
tribes, subject, however, to the determination of the 
United States courts, as provided herein. The Com- 
mission is hereby required to file the lists of members 
as they finally approve them with the Commissioner of 
Indian Affairs, to remain there for the use as the final 
judgment of the duly constituted authorities. And said 
Commission shall also make a roll of freedmen entitled 
to citizenship in said tribes and shall include their 

NAMES IN THE LISTS OF MEMBERS tO be filed with tllC 

Commissioner of Indian Affairs. * * * It is hereby de- 
clared to be the duty of the United States to establish 
a government in the Indian Territory, which will rec- 
tify the many inequalities and discriminations now ex- 
isting in said Territory." 



14 

Tlie Act of 1893 had already declared the purpose of 
Congress to be the allotment of lands in severalty. The 
above act is positive and emphatic. The rolls, usages and 
customs of said tribers were to be applied to the Indian, as 
to which of the Five Civilized Tribes he should belong, or 
the adventurous, daring white intruder. But the right of 
the Freedmen to enrollment as a member of said tribes was 
not, by the act, dependent upon the rolls, usages and cus- 
toms of the tribes. 

The Freedmen's right was confirmed and conferred by the 
Act of Congress itself independent of the rolls, customs and 
usages of the tribes (which, it was generally understood, 
might attempt to discriminate against the negro). The 
Commission was directed to "make a roll of freedmen en- 
titled to citizenship in said tribes, and shall mclude their 
names in the list of members to be filed with the Commis- 
sioner of Indian Affairs." 

And by the last sentence the duty of the United States 
was declared to establish a government which zanll rectify 
the many inequalities and discriminations now existing in 
said territory." 

"Oh, but," say counsel for the Elect who are now 
enrolled and have received their principalities, and want the 
remainder that is still undistributed, "This was but a census 
roll," "This act did not declare any definite individual rights 
and did not designate what the allotment of any one should 
be." We answer it did. The Act of 1893 declared the 
purpose of the Government of the United States to be to 
distribute to the members of the Indian tribes, and this Act 
of 1896 declared the status of freedmen (meaning persons 
ot color) in all the Five Civilized Tribes to be that of a 
member of said tribes, and it is only in the Choctaw-Chick- 
asaw tribe where the rights then declared have ever been 
disputed and even in those tribes it was not disputed 



15 

after the Acts of 1893, 1896 and 1897, until the subtlety 
of the lawyers had, as I shall hereafter show, utterly dis- 
torted the intent of Congress by a method so simple and yet 
so effective as to entitle the owner of the cunning brain that 
devised it to front rank as a master mechanic of destructive 
and subversive legislation. 

Congress continued to declare the purpose before ex- 
pressed and by the Act of June 7, 1897 (30 Stat. L., 83), 
it was declared — 

"And the United States Commissioners in said Ter- 
ritory shall have and exercise the powers and jurisdic- 
tion already conferred upon them by existing laws of 
the United States as respects all persons and property 
in said territory ; and the laws of the United States and 
the State of Arkansas in force in the Territory shall 
apply to all persons therein, irrespective of race, said 
courts exercsing jurisdiction thereof as now conferred 
upon them in the trial of like causes. * * * 

"That said Commission shall continue to exercise all 
authority heretofore conferred on it by law to nego- 
tiate with the Five Tribes, and any agreement made 
by it with any of said tribes when ratified, shall operate 
to suspend any provisions of this act if in conflict there- 
with as to said nation; prozided, that the words 'rolls 
of citizenship' as used in the Act of June 10, 1896, 
shall be construed to mean the last authenticated rolls 
of each tribe which have been approved by the council 
of the nation, and the descendants of those appearing 
on such rolls and such ADDITIONAL NAMES AND 
THEIR DESCENDANTS as have been subsequently 
added, either by the council of such nation, the duly 
authorized courts thereof, OR THE COMMISSION 
UNDER THE ACT OF JUNE 10, 1896. And all 
other names appearing upon such rolls shall be open to 
investigation by such Commission." 

Observe the care with which Congress preserved the 



i6 

rights of the Freedmen (persons of color) in the above 
Act : "The rolls of citizenship" were to include the last au- 
thenticated rolls of the tribes," and the additional names 
and their descendants * * as have been subsequently 
added" * * * j^y ''^\^q Commission under the Act of 
June lo, 1896." 

What persons were the Commission directed to add to 
the rolls of membership or citizenship by the Act of June 
10, 1896? The "FREEDMEN ENTITLED TO CITI- 
ZENSHIP IN SAID TRIBES." 

And by the Act of 1897 ^"^ the proviso therein the fur- 
ther negotiations with said tribes by the Commission could 
not vary or disturb the status of the freedmen thus as Con- 
gress confidently supposed, fully vested with equal rights 
as members and citizens of the Five Civilized Tribes, 

It is apparent that the Freedmen roll in the Choctaw- 
Chickasaw tribes, as well as in all other tribes was a con- 
firmed citizenship roll up to this time. The allotments were 
not made until years afterwards. The ignorant negro in 
the Choctaw and Chickasaw tribes little dreamed how easy 
it would be for artful villainy to steal upon his secure hour 
and end his rights. Much testimony was taken as to the 
lack of protest upon the part of the negroes to enrollment 
upon the "Freedmen roll." Why should he have protested? 
It was of no consequence to him whether you called him an 
Indian by blood or a Freedman, so long as his rights were 
the same. The rolls were to be made descriptive of the 
other persons because of the increasing claims of the white 
intruders, but the negro, — why he was born there and 
easily identified, he needed no description of the quan- 
tum of Indian blood in his veins. It was not made a con- 
dition of citizenship that he have any Indian blood. The 
General Council of the Choctaw Nation was active, how- 
ever. In a memorial to Congress, October 25, 1898, signed 



17 

by Green McCiirtain, Principal Chief Choctaw Nation 
(Act Choctaw Nation, 1898-9), it is recited that the Nation 
was then in debt $75,000 incurred by reason of having to 
defend the Nation against "gross and unjust claims of 
whites and negroes without a drop of Indian blood, to citi- 
zenship," although the poor negro had no money to spend 
to secure his rights, or to protect and defend them after 
they were secured. This $75,000 is no part of the enormous 
sums thereafter paid to regular and special attorneys which 
aggregated in all nearly one million dollars. 

These attorneys were active, the acts of the Choctaw Na- 
tion show that they and the Council were in constant at- 
tendance upon the Dawes Commission. 

The Act of June 28, 1898, is passed and note that the 
purely technical Freedman that is the word "Freedman," 
as correctly used in the Treaty of 1866 first, now appears in 
the Acts of Congress as the "Chickasaw Freedmen" : 

"The Act of June 28, 1898, provided that when the 
roll of citizenship of any one of said nations is also 
completed, the Commission heretofore appointed under 
Acts of Congress, and known as the 'Dawes Commis- 
sion,' shall proceed to allot the exclusive use and oc- 
cupancy of the surface of all the lands of said nation 
or tribe susceptible of allotment among the citizens 
thereof, as shown by said roll, giving to each, so far as 
possible, his fair and equal share thereof, considering 
the nature and fertility of the soil, location and value 
of same." 

"The Commission is authorized and directed to make 
correct rolls of the citizens by blood of all the other 
tribes eliminating from the tribal rolls such names as 
may have been placed thereon by fraud or without au- 
thority of law, enrolling such only as may have lawful 
right thereto, and their descendants born since such 
rolls were made, with such intermarried white persons 
as may be entitled to Choctaw and Chickasaw citizen- 
ship under the treaties and the laws of said tribes." 



i8 

* * * "It shall make a correct roll of all Choctazv 
frcedmen ENTITLED TO CITIZENSHIP under the 
treaties and laws of the Choctaw Nation, and all their 
descendants horn to them since the date of the treaty. 
It shall make a correct roll of Chickasaw freedmen en- 
titled to any rights or benefits under the treaty made in 
eighteen hundred and sixty-six between the United 
States and the Choctaw and Chickasaw tribes and their 
descendants born to them since the date of said treaty 
and forty acres of land, including their present resi- 
dences and improvements, shall be allotted to each, to 
be selected, held and used by them until their rights 
under said treaty shall be determined in such manner 
as shall be hereafter provided by Congress." 

Congress in this Act of 1898 for the first time used the 
word Freedmen, relating to the Choctaw and Chickasaw 
tribes with any qualifying words or in any other sense than 
as the word was used as applying to persons of color in all 
the tribes. Note, it did not declare the rights of the Choc- 
taw Freedmen in the above act to be other than rights of full 
citizenship, but directed a "correct roll of Choctaw freed- 
men entitled to citizenship under the treaties and laws of the 
Choctaw Nation." 

Even these words cannot be construed to destroy the rights 
of persons enrolled under the act of 1896 and declared by 
Congress to be entitled to membership independently of the 
Choctaw laws, but the clause really endangering the rights 
of the free persons of color and which was the smooth sur- 
face of a thin wedge which thereafter by a peculiar con- 
struction deprived practically all persons in both the Choc- 
taw and Chickasaw tribes of their full rights as members 
and citizens was the above clause referring to the "Chick- 
asaw Freedmen entitled to any rights or benefits under the 
treaty," etc. 

Most of the purely technical Freedmen (former slaves) 



19 

of the Chickasaw tribes had been denied enrollment an any 
roll. By the proper construction of the treaty, except that 
Congress had intended to confer rights upon them, as it 
undoubtedly did, they were not entitled to full citizenship 
rights under the treaty. Owing to the activity of those who 
opposed additions to the roll many of treaty-Chickasaw- 
freedmen (former slaves) had been excluded from 
the citizenship Freedmen rolls already made up and 
it is entirely consistent with the purpose of Congress 
to assume that Congress intended to include as an addition 
such particular persons, the technical freedman (former 
slave), who had been excluded. "His descendants born 
since the treaty" was an error. His descendants born since 
the treaty had NO rights under the treaty as a technical 
treaty Freedman. The word descendants used in the treaty 
of 1866 applied only to descendants then living, which de- 
scendants had been held in slavery. 

I insist that by the Act of 1898, the United States Con- 
gress did not intend to place the Chickasaw freedmen, that 
is, those persons of color born free or those who had ac- 
quired citizenship by marriage, on anything but a roll of 
full citizenship and in providing for such additional roll, the 
meaning of the word "Chickasaw freedmen" was intended 
to apply only to such particular individuals who had once 
been held in slavery, and that the Act of 1898 did not intend 
to disturb the prior construction that many freedmen of the 
Chiksaw tribe had been adopted into the tribe and were en- 
titled to full distribution and that all Chickasaw negroes, 
other than "freedmen" in its technical sense, were thought 
to have already been included upon the full citizenship roll ; 
"that all lands within the Indian Territory belonging to the 
Chocktaw and Chickasaw Indians shall be allotted to the 
members of such tribes so as to give to each member of 
these tribes, so far as possible, a fair and equal share thereof, 



20 

considering the character and fertility of the soil and the 
location and value of the lands. In the clause * * * 
"all coal and asphalt lands reserved for such tribe, exclusive 
of freedmen," the words "exclusive of FREEDMEN," was 
intended to apply solely to the individual who had once been 
held in slavery. * * * "Provided further, that the 
Commission shall make a correct roll of Chickasaw freed- 
men entitled to any rights or benefits under the treaty of 
1866 between the United States and the Chickasaw tribes" 
and their descendants born to them since the date of said 
treaty, and 40 acres of land, including their present lands 
and improvements shall be allotted to each, to be selected, 
held and used by them until their rights under said treaty 
shall be determined in such manner as shall hereafter be 
provided by Act of Congress." 

Again, this clause conferred the 40 acres upon the former 
slave freedom who had NOT become a citizen of the tribe 
by m.arriage and was not intended to exclude a man who had 
been born in the tribe, or one who was by marriage or adop- 
tion, independent of the particular rights conferred by the 
Treaty of 1866, entitled to full membership in the tribe. 
* * * "that the lands allotted to the Chikasaw and Choc- 
taw freedmen are to be deducted from the portion to be 
alloted under this agreement to the members of the Choctaw 
and Chickasaw tribes so as to reduce the allotment to the 
Choctaws and Chickasaws by the value of same. That the 
said Chocktaw and Chickasaw freedmen (referring again 
only to former slaves) who may be entitled to ALLOT- 
MENT OF FORTY acres each shall be entitled to land in 
value of forty acres of the land of the two nations. * * *" 

It is further agreed that all of the funds invested in lieu 
of investment treaty funds or otherwise now held by the 
United States in trust for the Choctaw and Chickasaw tribes, 
shall be capitalized within one year after the tribal govern- 



21 

ments shall cease, so far as the same may legally be done, 
and be appropriated and paid by some officer of the United 
States appointed for the purpose to the Choctaws and Chick- 
asaws (FREEDMEN EXCEPTED) (Note: Meaning the 
particular individuals who had been slaves) per capita to 
aid and assist them in improving their homes and lands. 
(The words "freedmen excepted" being applicable only to 
those persons of color who had formerly been held in slav- 
evry. ) 

Now, what was done? The Commission under Act of 
1898, took the roll which they had formerly prepared of the 
"Choctaw Freedmen Entitled to Citizenship," to whom full 
rigfhts had heretofore been awarded BY ACT OF CON- 
CRESS. They took the rolls of the Chickasaw Freedmen, 
who were enrolled under Act of 1896, entitled to citinenship, 
added to them the children born since the Act of 1896, and 
returned them all on a roll of limited rights entitled only 
to land equal to forty acres of average value. 

Communication of the Dawes Commission to the Depart- 
ment of the Interior : 

"The 1896 census roll of Choctaw freedmen was 
used in connection with the enrollment of Choctaw 
freedmen, but all freedmen who established ( ? ) that 
they were, at any time, slaves of a Choctaw or Chick- 
asaw Indian or descendants of such slaves, were en- 
rolled without reference to the question of whether or 
not their names appeared on any rolls." 

This is a statement as to how the roll of 1898 was made 
up. (Senate Document No. 505, 60th Congres).s 

The Act of 1898 used the word freedmen in its technical 
sense as "one formerly a slave, but made free." Is it pos- 
sible that Congress by conferring, in the Act of 1898, limited 
rights upon the persons called Freedmen in the Treaty of 



22 

1 866, intended to destroy. the full rights theretofore given 
to persons of color horn free which is undoubtedly the sense 
ill which Congress used the words "Freedmen" in the Act 
of 1896? 

The work of nulhfying the intent of Congress so clearly 
expressed by former acts was not effectuated by the Act 
of 1898. The finishing touches to the rights of the free 
persons of color called "freedmen" in the Act of 1896 was 
by an agreement between the representatives of the Choc- 
taw and Chickasaw tribes (although the tribal organization 
was then practically without any of the power of govern- 
ment) and the Dawes Commission, which adopted certain 
definitions, one of which was : 

"Sec. 3. The words members or members and citizen 
or citizens shall be used to mean members or citizens of 
the Choctaw or Chickasaw tribe of Indians in Indian 
Territory, not including freednien." — (Definitions, in 
Atoka agreement adopted by Act of Congress, July, 
1902.) 

Now, this definition was not radically improper except that 
under the word "Freedmen" had been formerly included a 
number of persons who were not, technically, freednien. 
Congress having used it in a double sense it was necessary in 
order that justice be done that if you are to have a special 
definition of the word member or citizen of the Choctazvs 
and Chickasaws differing from the meaning of the word 
member or citizens as used with reference to the other tribes 
then you must have the different definition of the word 
"Freedmen" as used in the Choctaw and Chickasaw tribe 
with reference to the skwe freednien described in the Treaty 
of 1866, the rights of such slaz'e freednien being entirely 
different from those conferred by the use of the word 
"Freedmen" as CITIZENS OF COLOR, which is the sense 



2Z 

in which the word had been used in former Acts of Con- 
gress, with reference to ALL the Five Civilised Tribes, in- 
ckiding the CHOCTAW-CHICKASAW. 

In the enactment of the legislation of 1898 Congress, 
with respect to the Five Civilized Tribes, then relied to 
some extent upon the Interior Department, the Interior De- 
partment relied then upon the Dawes Commission. This 
Dawes Commission had begun its existence by violating 
the spirit of the Act of 1871 and by treating with the Choc- 
taw-Chickasaw tribe as if it were a foreign nation instead 
of a dissolving shadowy organization of no more real po- 
litical potency than the Order of the Colonial Wars. The 
Dawes Commission, of course, was naturally effected by this 
constant positive insistence upon "solemn treaty rights" by 
the attorney for the Choctaws and Chickasaws. That the 
enrolled elect of the Choctaw-Chickasaws gradually began 
to see their rights, not in the light of grateful recipients of 
the bounty of a great government, but as exclusive inher- 
itors of the earth who were being robbed by negroes of 
their patrimony, is apparent. They certainly got the In- 
terior Department and the Dawes Commission, convinced 
that the former Acts of 1893, 1896 and 1897 had violated 
their rights by ordering equal distribution and upon the 
recommendation of the Dawes Commission the Act of 1902 
was passed by Congress. The Act of 1902, so far as re- 
fers to Choctaws and Chickasaws was practically all writ- 
ten by the attorneys for the Choctaw-Chickasaw Enrolled 
Elects. The Act of 1902 is an adoption of the Atoka 
agreement in which the United States as a contracting party 
was as little a factor as if the Choctaw-Chickasaw organiza- 
tion were the victorious Iroquois from which they sprang, 
and the United States the vanquished foe; and the negro 
whose rights were destroyed by the Atoka agreement had as 
little chance for protection as if he had been bound to a 



24 

slake and was surrounded by the dancing Iroquois preparing 
for his final extinction. 

The acts of the General Council of the Choctaw Nation, 
which Nation existed solely for the purpose of controlling 
and monopolizing these funds, and the testimony before the 
Select Committee, show their activities. Their attorneys, 
Select Committee shows their activities. Their attorneys, 
agents and clerks were busy fighting the Mississippi Choc- 
taws and a number even of full bloods in the citizenship 
court. The negroes who were already enrolled upon the 
Freedmen roll, they had no need to fight and worry over 
them. They would dispose of them in a mass and in a 
block. 

Further, they would not only cut these "niggers" down 
to 40 acres, but they would cut them down to 20 acres 
(which was done by the average value clause.) The "nig- 
ger" former slave had for forty years been cultivating much 
more than 40 acres each. When the appraisement came to 
be made up his land was appraised, being in cultivation, at 
the maximum, $6.50 per acre. The average in the tribe was 
$3.26^ per acre. In order for the nigger to get his improve- 
ments, he being allowed only land equal to 40 acres of the 
average allotable land, the value of his allotment by this 40 
acres clause was 40 times $3,263^ (average value) equal 
$130.10. so that if he wanted his improvements he only got 
20 acres; that is, 20 times $6.50, the appraised value of his 
improved land, but even this bold-faced robbery did not sat- 
isfy them. Comes now the crowning infamy, and I have no 
doubt that these gentlemen who were representing the Choc- 
taws-Chickasaws, by this time had succeeded in persuading 
themselves that the United States was deliberately robbing 
THEM, for they had the supreme audacity to secure the in- 
sertion in the Act of 1902 of a clause for which they should 



25 

be paid by the United States for even this 20 acres awarded 
to the former slaves. 

Having secured an interpretation of the word "Freedman" 
which considered as enrohment would all be niggers, and 
an act of legislation which when applied to the Choctaw- 
Chickasaw would entitle the nigger to only 20 acres of land 
— land whose value his industry had created one would 
suppose the Elect and their agents and attorneys would 
have been satisfied. No, the United States must pay them 
for their lands because the United States had robbed them 
by giving anything to the nigger. 

The above statements are not imaginative, they have not 
been testified to by human witnesses before the committee, 
but the facts as conclusively appear by an examination of 
the respective acts considered in their natural sequence as 
if all of the parties to a plot had confessed but it was 
not a plot. It works like a plot because and solely because 
here were a lot of bright men working continuously with- 
out opposition to the common purpose of destroying the 
property right of the negro. 

The negro former slave had up to this time been occupy- 
ing all of the land he could cultivate under the rights pro- 
vided under the treaty of 1866 and many of these negroes 
had as much as three hundred acres under fence. No one 
objected — land in the early days was as free as air and 
water to any man in the tribe willing to cultivate it. The 
report of the Commission provided to be made by next to 
last clause of Act of June 10, 1896, relating to excessive 
holdings of members of the tribe would undoubtedly throw 
much light on the extent of the industry of the former slave 
and how he was improving the land by cultivation. 

When this idea of the rights of the negro being limited 
under the Treaty of 1866 was resurrected by the lawyers 
for the Elect and the Select and the intentional confusion of 



26 

the former slave with the negro born free was first at- 
tempted to be propagated, those of the younger generation 
of negroes born in the tribe were much Hke their full blood 
Indian brothers of the tribe. They were not as industrious 
as the fonner slave. They were not cultivating lands to 
any greater extent than the Indian was. 

Their individual allotments as members of the tribes had 
not been made and they had no occasion to know and were 
not informed that their rights were about to be confined 
and limited to rights which were only limitations upon the 
rights of slaves. 

They were on the Freedmen roll, which to their minds 
was a roll of full rights. Their complaisance was justified by 
the fonner Acts of Congress which gave them full rights. 
Enact a limitation for freedmen, eliminate freedmen from 
the definition of the words members and citizens, and by 
this bit of magic their rights are destroyed and they are 
not notified of the change ! 

Supplement this, as was done, by an act prohibiting the 
transfer of any one from the Freedmen roll to the roll of 
citizenship, unless he had before made application for en- 
rollment on the citizenship roll (when there was fomierly 
no occasion for him to make an application for enrollment 
on the citizenship roll, for the Freedman roll was itself, 
prior to this act, a roll of citizens and members), add a 
provision finally closing the rolls, and the rights of the ne- 
gro and negro Indian are finally foreclosed and ended. All 
this was done. The Assistant Attorney General, recogniz- 
ing the great injustice done these people, decided that those 
of mixed blood were entitled to be enrolled as citizens. He 
did not go far enough to determine that it was the intention 
of Congress to give the negro nomad equal rights with the 
red nomad without regard to the quality of his blood, but he 
had rendered a decision which would have remedied the in- 



27 

justice contemplated had he not been met and his able opin- 
ions and earnest efforts to secure justice have been de- 
stroyed by this cunning definition of "member" inserted into 
the Atoka agreement and by the act closing and forbidding 
transfers. Sec. 4, Art. April 26th, 1906. 

The Atoka agreement did not give any allotment of 40 
acres to DESCENDANTS of Choctaw-Chickasaw Freed- 
men (using the word as it was used to express the former 
slave), Sec. 11, Act of July i, 1902. 

The new legislation to which I now refer was for evident 
reasons confined to the Chickasazv Freedmen. Parenthetic- 
ally, the Choctaw and Chickasaws were one family occupy- 
ing common territory and the distinction between them was 
the same distinction and only the distinction which exist be- 
tween the children of Smith, male, and Robinson, female, 
if some of the children should call themselves Smith and 
some should call themselves Robinson. The distinction had, 
as shown by all the laws and treaties since 1866, no more 
distinguishing feature and no more vital effect than the dis- 
tinction between the individual who joins the "Daughters 
of the Revolution" and she who joins the Daughters of the 
Colonial Wars, but if these lawyers were to patch up a claim 
under which they might raid the United States Treasury, 
it would not do to make the attempt under a claim of in- 
demnity for "Choctaw" Freedmen or for "Choctaw-Chick- 
asaw Freedmen" for the CHOCTAWS HAD, after a joint 
council with the Chickasaws, admitted 8,534 former slaves 
to the tribe under the Treaty of 1866 as shown by a rol/ 
made in 1883, which roll must be somewhere in the archives 
of the Interior Department, for it is mentioned on page 6 of 
Senate Document No. 505, 60th Congress, ist Session, and 
as the Choctaw and Chickasaw permitted the members of 
each tribe to settle interchangeably and there was no sep- 
arate territory for each, but all was common to all, it might 



28 

be held, as it undoubtedly should be held, that the Freed- 
men, former slaves of its combined family, were all ad- 
mitted under the treaty of 1866. 

No, the suit must be brought for the Chickasaws alone, 
and Section 36 of the Act o fjuly i, 1902, provides for 
it, and under this act it was held — the case is fully set out 
hereafter and in the appendix — it was held that the United 
States should compensate the Chickasaws for granting the 
foniier slaves 40 acres of land because the United States 
had not removed them after the Chickasaws had refused 
to allot them 40 acres of land as provided under the 
Treaty of 1866. 

The theory upon which this cause of action was referred 
and maintained in the Court of Claims is as absolutely 
preposterous as if Congress would to-day pass an act au- 
thorizing the present descendants of the French in what 
was formerly Louisiana Territory to recover from the 
United States for lands since given as homesteads to the 
American-born of German or Irish descent and irresistibly 
forces one to the conclusion that the philosopher-wit was 
right when he said "That is Law which is impudently as- 
serted and stoutly maintained." 

It is of no consequence to the claimants whether the re- 
sults were caused by error, or accomplished by fraud. The 
effect is the same. The claimants' rights were destroyed. 
Congress was imposed upon, and the beneficent and humane 
purposes of Congress were nulHfied. Will the present 
Congress right the palpable wrong? That is the material 
question. 

WHAT WAS THE INTENT OF THE TREATIES? 

THE INTENT OF THE TREATIES was that all 
members of the tribal community share equally. 



29 

Whatever may have been the exact title of the Choctaw 
Nation or the Chickasaw tribe under the varying terms of 
the earher treaties by which lands were granted, guaran- 
teed, confirmed or set apart to them, it is self-evident that 
the grants were to political coiiiniunities for the benefit of 
the inliabitants thereof who were inhabitants by the right 
of birth, or by acquiesence of the tribe, and not intruders 
by their own volition. The right, and the duty of Con- 
gress, representing the Supreme power of the United 
States, Sovereign of the Soil, and the most benign and 
just Sovereign that ever existed on this planet, now that 
these political communities are extinct, the community 
property rights individualized, and the entire heterogeneous 
mass of humanity composing the inhabitants of this area 
has been clothed with citizenship, to distribute these hith- 
erto worthless but now valuable unoccupied lands of the 
Indian Territory upon broad principles of common hu- 
manity and equal justice, which follows the spirit of the 
treaties, is undoubted. 

Conditions have so wonderfully changed, both as to the 
lands and the inhabitants, that a reference to the treaties 
prior to 1866, and even to that treaty affords but little 
guide, either to the intent of the parties to the treaty or as 
to what words the parties would have used, could they have 
foreseen all the changes that have since taken place. The 
patent issued under the Treaty of 1830 granted certain 
land to the "Choctaw Nation in fee-simple to them and 
their descendants to inure to them while they shall exist as 
a nation and live on it liable to no transfer or alienation, 
except to the United States or with their (the U. S. ) 
consent." 

The Choctaw Nation no longer exists, the Choctaw Na- 
tion never lived upon the greater part of it in the sense of 
occupying or utilizing it, and to attempt to trace the de- 



30 

scendants of the original beneficiaries, or parties to that 
treaty would be a task beside which the counting of the 
sands of the sea-shore, or the numbering of the stars of the 
firmament would be an easy one. To say that as "descend- 
ants" the person having 1-64 Indian and 63-64 Caucasian 
blood should share, and that he who has | Indian and -^- 
free negro blood shall not, violates common sense and law. 
The distribution cannot be made upon a determination of 
who are descendants, and Congress has never attempted 
any such feat. The Treaty of 1855 vested the lands in the 
members of the ''Choctaw and Chickasaw tribes their heirs 
and successors to be held in common so that each and 
every member shall have an equal undivided interest in 
the whole" and Article VII of the Treaty of 1855, clearly 
recognized the right to membership by birth, when the 
tribes exempted from the jurisdiction of the tribe all those 
"who were not by birth, adoption or otherwise citizens or 
members of either the Choctaw or Chickasaw tribes" and 
by a conclusive presumption from the language used, re- 
tained jurisdiction over those who zi'erc by birth, adoption 
or otherwise, citizens or members of said tribes. If the 
lands are to be distributed under the intent of the terms of 
the Treaty of 1855, clearly all those who by birth, adoption 
or otherwise are citizens or members at the time the com- 
munity property is individualized, should equally share, and 
the language of the Treaty of 1855, ^^ ^'^^^ ^^ the language 
of the Treaty of 1866 and the language of the Acts of 
Congress, if intelligently followed (except in so far as the 
construction of the Act of 1902, nullified this purpose and 
intent), would all be consistent and would have effected 
distribution upon the broad ground of equal justice and 
common humanity. 

Coming now to the Treaty of 1866, and the great events 
which immediately preceded it : The Choctaws and Chicka- 



31 

saws were slave holders, as were the Cherokees and the 
Creeks. The two tribes had removed more than five thou- 
sand slaves with them from their former country in Mis- 
sissippi and Louisiana to the Indian country. Their slaves 
were not all negroes. They were of all degrees of mixed 
negro and Indian blood and some with a mixture of the 
three races, white, Indian and negro. Early in the war of 
the rebellion, the Choctaws and Chickasaws cast off their 
allegiance to the United States of America and formed an 
offensive and defensive alliance with the Confederate 
States of America. Many of the Choctaws and Chicka- 
saws enlisted in the actual service of the Confederacy and 
went to the scenes of actual hostilities. Most of the slaves, 
some through affection for their former masters, some 
through fear, and many through ignorance as to what the 
war involved, remained in the Indian country and tended 
the herds and cultivated the soil for the Indians. Some 
of the younger slaves ran away from the tribal territory and 
joined the "Yankee" army. 

When the war closed the emancipation proclamation had 
virtually freed these foiTner slaves. When the Commis- 
sioners of the United States were sent by President Lin- 
coln to Fort Smith to negotiate terms of peace with these 
tribes in 1865, the future of the helpless and dependent 
human beings of varying degrees of black color were con- 
sidered as of as great importance to the people of the 
United States, and their claims upon our sense of humanity 
and justice were as great, as were the people of red color 
or the then very few people of red and white color. If 
the Indian were a nomad, the former slave was the shadow 
of the nomad. If the free Indian was to be taken care of, 
his former slave, then to be made free, was also to be taken 
care of. After several days of discussion a truce was 
arranged, the intention and purpose of the Executive of the 



32 

United States to care for the former slaves, being clearly 
expressed, positively asserted, and stoutly maintained 
throughout the negotiations, and finally acceded to. The 
terms of this truce were not then ratified, but were finally 
crystallized into the terms of the Treaty of July loth, 
1866. That truce, hov^ever, was an unconditional sur- 
render and an agreement by the tribes that "they would in 
all things recognize the Government of the United States 
which should exercise exclusive jurisdiction over them." 
The Treaty of July 10, 1866, clearly shows that it was then 
the intention of this government to which these two tribes 
acquiesced, that holding of the land in common should be 
eventually abolished and that the holding of the land in 
severalty should be estabhshed (Article IX, Treaty of 
1866). This holding should be by the "individual mem- 
bers." Every male and female adult and minor, Choctaw 
and Chickasaw (the words "Choctaw" and "Chickasaw" 
being used to denote a then and therafter member of the 
respective tribes) should be entitled to select 160 acres of 
land and the remaining lands should be held in their "cor- 
porate capacity" — plainly intending in their political 
capacity. 

As to the annuities and funds, they were, by Article 
XLVII of that Treaty "to be capitalized or converted into 
money as the case may be and the aggregate amounts 
thereof belonging to each Nation shall be e(|ually divided 
and paid per capita to the Individuals thereof respectively 
to aid and assist them in improving their homesteads and 
increasing or acquiring flocks and herds, and thus encourage 
them to make proper efforts to maintain successfully the 
new relations which the holding of their lands in severalty 
will involve." Provided, nevertheless, that there shall be 
retained by the United States such sum as the President 
shall deem sufficient to defray the expenses of tlie Govern- 



33 

ment of said Nations, respectively, together with a ju- 
dicious system of education." 

All treaties and parts of treaties inconsistent therewith 
were declared null and void. (Article LI.) 

The right to the selection of the land in severalty was 
by Article XXVI extended "to all persons who have be- 
come citizens by adoption or intermarriage of either of 
said Nations, or who may hereafter become such (Article 
XXVI). The Superintendent of Indian Affairs was made 
the Executive of said territory with the title of Governor 
of the said territory of Oklahoma (Para. lo. Art. VIII ) 
a council was provided to be superseded by a General As- 
sembly. 

The particular individuals who had been slaves were 
provided for by the provision of Article III by giving them 
in severalty 40 acres each. Slavery was abolished. The 
children thereafter to be born were to be born free. There 
w^as no individual grant to them as there was no individual 
grant to the children thereafter to be born to the Indian. 
The disabilities of former slavery no longer existed. There 
was no special provision necessary for the future born 
children of the negro race because by all former laws of 
the tribe, all born in freedom to tribal environment were 
alike entitled to the community property. 

As to the individual FORMER SLAVE a special pro- 
vision was made by the 3d Article of the Treaty of 1866, 
as follows : 

By 3rd article of the treaty of July loth, 1866, the Choc- 
taws and Chickasaws ceded to the United States the terri- 
tory west of 98 degrees west longitude, in consideration of 
$300,000, to be held in trust by the United States for said 
nations "until the legislatures of the Choctaw and Chicka- 
saw nations, respectively, shall have made such laws, rules 
and regulations as may be necessary to give all the persons 



34 

of African descent, resident in the said nations at the date of 
the treaty of Fort Smith, and their descendants HERETO- 
FORE HELD IN SLAVERY AMONG SAID NA- 
TIONS, all the rights, privileges and immunities, including 
the right of suffrage of citizens of said nations, except in 
the annuities, moneys and public domain claimed by or be- 
longing to said nations respectively, and also to give to such 
persons who were residents, as aforesaid, and their descend- 
ants, forty acres each of the land of said nations on the same 
terms as the Choctaws and Chickasaws to be selected on the 
survey of said land, after the Choctaw and Chickasaw and 
Kansas Indians have made their selection as herein pro- 
vided ; and immediately upon the enactment of such laws, 
rules and regulations, the said sum of $300,000 shall be 
paid to the said Choctaws and Chickasaws Nations, in the 
proportion of three-fourths to the former and one-fourth to 
the latter, less such sum at the rate of $100 per capita, as 
shall be sufficient to pay such persons of African descent 
before referred to, as within 90 days after the passage of 
such laws, rules and regulations shall elect to remove and 
actually remove from said nations respectively. And should 
said laws, rules and regulations not be made by the legis- 
latures of said nations, respectively, within two years from 
the ratification of this treaty, then the said sum of $300,000 
shall cease to be held in trust for the said Choctaws and 
Chickasaw Nations and be held for the use and benefit of 
such said persons of African descent as the United States 
shall remove from the said territory in such manner as the 
United States shall deem proper, the United States agreeing 
within 90 days from the expiration of said two years, to re- 
move from said nations all such persons of African descent 
as may be willing to remove ; those removing or returning 
after having been removed from said nations to have no 
benefit of said sum of $300,000 or any part thereof, but 



35 

shall be upon the same footing as other citizens of the 
United States in the said nations." 

And Article IV of said treaty provides : 

"The said nations further agree that all negroes not other- 
wise disqiiahfied or disabled, shall be competent witnesses 
in all civil and criminal suits and proceedings in the Choc- 
taw and Chickasaw courts, any law to the contrary, not- 
withstanding, and they fully recognize the right of the 
freedman to a fair remuneration on reasonable and equitable 
contracts for their labor which the law should aid them to 
enforce. And they agree on the part of their respective na- 
tions, that all laics shall be equal in their operation upon 
Choetaivs, Chiekasaru's and negroes, and that no diserimina- 
tion affecting the latter shall at any time be made, and that 
they shall be treated with kindness and be protected against 
injury, and they further agree that while the said freedmen 
nozo in the Choctazv and Chickasaw nations, remain in said 
nations respectively, they shall be entitled to as much land 
as they may cultivate for the support of themselves and 
families, in cases where they do not support themselves and 
families by hiring, not interfering with existing improve- 
m.ents without the consent of the occupant, it being under- 
stood that in the event of the making of the laws, rules and 
regulations aforesaid, the forty acres aforesaid shall stand 
in place of the land cultivated as aforesaid." 

Note. — The word "freedman" is used in this treaty and 
the word "negro" is used. They were not used inter- 
changeably. The word "freedman" described the individ- 
ual person who had himself been a slave, but had been freed 
by the emancipation proclamation and by the treaty. 

Slavery was abolished. The persons thereafter born 
were born in freedom. Thy could not be "freedmen" be- 
cause never slaves. Some of the privileges and the disabil- 
ities of the above treaty were limited to the class of individ- 



36 

uals of African descent who were living in the nations at the 
date of the treaty of Fort Smith and their then descendants 
(wherever their then descendants were then Hving) hereto- 
fore held in slavery among said nations. Those former 
slaves residing in the nation in 1865, and their then descend- 
ants who were then residing elsewhere, also former slaves, 
had the right to the 40 acres of land. It was to them, and 
to them alone, that the 40 acres was given, and upon whom 
but limited rights were accorded. 

The negroes thereafter born free and those who should 
afterwards be born of unions between Indians and negroes, 
what about them? There is not one word in that treaty 
limiting their rights! 

On the contrary, there is an express prohibition against 
any abridgment of their rights. * * * 

"And they agree on the part of their respective nations 
that all laws be equal in their operation upon Choctaws, 
Chickasaws and NEGROES, and that no discrimination 
affecting the latter shall at any time be made." How could 
a Choctaw or Chickasaw thereafter to be born be given a 
share of community property by law if they should deny it 
to the negro thereafter born, without violating this treaty ? 

And by Article 26: 

"The rights here given the Choctaws and Chickasaws 
respectively, shall extend TO ALL PERSONS who have 
become citizens by adoption or intermarriage of either of 
said nations or who may hereafter become such. 

No law of the Choctaws or Chickasaws thereafter adopted 
could deprive the free negroes of the right to intermarry 
into the tribe, and no law of the Choctaws or Chickasaws 
could deprive the children of the union of Indian and negro 
or the children of full negro blood born in either tribe, of 
their birthright, and no law ever attempted to deprive the 



37 

children of the adopted citizen of the birthright of member- 
ship. 

In both the Choctaw and Chickasaw Nations the former 
slave, and also the free negroes, immediately proceeded to 
cultivate as much of the unoccupied lands as they could. 
There were millions of acres of unoccupied lands. The free 
negro and the fonner slave and the free-born children of 
former slaves intermarried in both tribes, and it is a fact, 
so generally known, as to require no proof, that more than 
a majority of the persons who voted in these tribes, and by 
whose votes the tribal relations were abolished, have negro 
blood in their veins. 

The laws of the Choctaws and the Chickasaws affecting 
the negro in slavery days, which are still cited by the Depart- 
ment and by the attorneys for the Choctaws and Chicka- 
saws were repealed. 

By Act of October 13, 1865, the Choctaw General Coun- 
cil repealed all former laws abridging rights aitd privileges 
and all laws conflicting with laws of the United States. 

How could the Choctaws or Chickasaws by law, custom 
or usage provide for the disposition and distribution there- 
after of community property to those thereafter to be born 
and deny it to the negro, thereafter to be born, and actually 
in existence when the distribution takes place without vio- 
lating Article IV of the Treaty of 1866? 

And Congress never intended to, and if any intention to 
so discriminate can be found to be expressed. Congress was 
imposed upon. 

THE TRIBAL TITLE TO LANDS. 

The rights granted to Indians and to Indian tribes by the 
conquering people of the United States were the result of 



38 

a highly developed concept of justice and of natural rights 
v^hich had never before manifested itself in any nation in 
the world. These rights were granted in recognition of the 
principle stated in the opinion of Justice McLean, of the 
Supreme Court of the United States, in Worcester v. Geor- 
gia, 6 Peters (U. S.), S. C. Reports, page 515: 

"The abstract right of every section of the human 
race to a reasonable portion of the soil, by which to 
acquire the means of subsistence, cannot be controvert- 
ed, and it is equally clear that the range of nations or 
tribes which exist in the hunter state, may be restricted.', 
* * * "The law of nature which is paramount to 
all other laws, gives the right to every nation to the en- 
joyment of a reasonable extent of country, so as to 
derive the means of subsistence from the soil." 

It was by the invocation of this law of nature that the 
Indian has secured his rights. Shall it be accorded to the 
Indian race or the mixed white and Indian alone and de- 
nied to the helpless black being of the human race? Was it 
intended by the United States in 1866 to set aside this wide 
domain, in recognition of this law of nature, to be enjoyed 
by the Indian or the mixed 1/64 Indian and 63/64 white, 
and deny it to the children of the patient former slave — the 
victim of the injustice of Indian and white man? It is in- 
conceivable that the law of nature should run for the 63/64 
white and 1/64 Indian and not for the black man. What- 
ever resemblance the negotiations of the United States with 
Indian tribes may heretofore have been to treaties with 
foreign nations, and while the tribes were either roving 
hostile bands with no property, or hunters and herdsmen 
with community property, and however the agreement of 
1866 may be given the imperialistic title of a treaty, it was 
called a treaty only because it was negotiated by the Execu- 
tive Powers of the United States, it is manifest throughout 



39 

every line of it that the United States was not dealing as 
with a foreign nation, but intended thereafter to govern 
these people by United States statutes and no longer by 
treaties, and it is further manifest, by the treaty of 1866 
that a holding in severalty of the lands and an occupation 
of 160 acres each should arise eventually — that Individual- 
ism should eventually appear, and that Collectivism should 
disappear. , 

Since 1871 (Act of March 3, 1871) "no Indian nation 
of the United States" has been "recognized or acknowledged 
as an independent nation, tribe or power with whom the 
United States may contract by treaty." 

"The construction of these acts (of Congress) in respect 
to the determination of citizenship cannot be successfully as- 
sailed on the ground of the impairment or destruction of 
vested rights. The lands and moneys of these tribes are 
pitblic lands and public moneys and are not held in individual 
ownership and the assertion by any particular applicant that 
his right therein is so vested as to preclude inquiry into his 
status involves a contradiction in terms." — (Cherokee Na- 
tion V. Hitchcock, 187 U. S., 294-306; Stephens v. Cherokee 
Nation, 174 U. S., 445.) 

It is evident from all the decisions that there is no con- 
stitutional limitation upon Congress to dispose of these lands 
as it wishes. There is no moral obligation created by the 
Treaty of 1866 requiring Congress to allot any Choctaw 
or Chickasaw more than 160 acres of land in severalty. 
There is a moral obligation created by that treaty to dis- 
tribute the public domain and the funds equally among 
the individuals of the respective nations. Is the negro born 
free in the tribe an individual of the Choctaw or Chickasaw 
Nations? Is the mixed-Negro-Indian born free, progeny 
of Indian and negro, an individual of the Choctaw Na- 
tion ? 



40 

By the laws of the nation can he be denied ? By the terms 
of the treaty can he be exckided ? By the laws of Congress 
was it deHbrately intended to exclude him? 

In the case of the Delawares (Cherokee Nation v. 

, 155 U. S., 190-208), it is said : 

"It must be borne in mind that the rights and interest 
which the native Cherokees had in the reservation and 
outlet sprang solely from citizenship in the Cherokee 
Nation, and that the grant of equal rights as members 
of the Cherokee Nation, carried with it the grant of all 
rights springing from citizenship." 

These lands are lands of the United States. The tribal 
right of occupancy is gone. Distribution has already been 
made in severalty, to many individuals of an area double 
that contemplated by the Treaty of 1866. The right of 
Congress to distribute the remaining lands and moneys 
among the members of the former tribe and to determine 
who are the members of the tribe is absolute and undoubted 
and the duty of Congress so to do is apparent, and impera- 
tive. 

MEMBERSHIP IN THE TRIBE AND FULL CITI- 
ZENSHIP HAS ALWAYS BEEN ACQUIRED BY 
BIRTH TO TRIBAL ENVIRONMENT, AND ALL 
BORN SINCE 1866 IN EITHER TRIBE WHO HAVE 
EXERCISED THE POLITICAL RIGHTS OF CITI- 
ZENS BY PERMISSION OF THE TRIBE ARE CHOC- 
TAWS OR CHICKASAWS BY BIRTH. 

Indian scholars say that both the Choctaws and Chicka- 
saws sprang from the same original stock. The language 
of both was the Choctaw language. The tribes occupied 
adjoining and overlapping territory in Mississippi and 
Louisiana. When the tribes were moved to the Indian 
country they occupied common territory with right of inter- 



41 

settlement, and except as to the old annuities even while the 
community and tribal life existed, there was practically no 
distinction between the two people and it was only by an 
artificial distinction, intermarriage being common, that any 
descendant of the original tribe can be said to be a Choctaw 
instead of a Chickasaw or a Chickasaw instead of a Choc- 
taw. All born in the Chickasaw settlement were called 
Chickasaws, that is, all born free, and all born in the Choc- 
taw settlement were born Choctaws. There was an infu- 
sion of white blood in both tribes long before they went to 
the Indian Territory. There was also an infusion of free 
negro as early as 1830, recognized as members of the tribe 
in the Treaty of 1830. The Spanish conquerors, the French 
explorers, and the Portugese had all left their impress upon 
the tribe and while ethnologists say that both tribes are de- 
scendants of the old Iroquois tribe, the members of the tribe 
have had so many infusions that the tribal name really only 
correctly describes one subjected to that particular tribal en- 
vironment. The words "Choctaw" and Chickasaw used in 
the Treaty of 1866 are used to describe, not any degree of 
Indian blood but are used to describe inhabitants of the 
tribe. The only requisite is that one be subject to the tribe, 
and the words bear no more relation to the mixture of 
blood, nor to the ancestry of the individual, than the word 
"Missourian" would today. Missourian is an inhabitant 
and native of Missouri. Choctaw is an inhabitant in one 
born to Choctaw tribal environment. Chickasaw is an in- 
habitant in, one born to Chickasaw tribal environment, and 
in both cases may include, beside those born in the tribe, 
those who are by law or custom adopted into the tribe. But 
enacted law and custom is not necessary to confer citizen- 
ship BY BIRTH. "In determining who are Indians the 
court must resort to the actual communities then existing," 
so says the Court of Claims in the case of the New York 



42 

Indians against the United States (40 Court of Claims Re- 
ports, 448). The children of white mothers and Indian 
fathers affiliated with a tribe and forming part of an Indian 
community must be reckoned as Indians (same case). 
"Where Indians leave their own tribe which is in amity, and 
join a new band which is hostile, the status is of the new 
band" (so says the United States Supreme Court in i8oth 
Sup. Ct. Reports, 261). The much quoted maxim that "the 
child follows the status of the mother," has no relation to a 
mother that is free or to her child that is born free, while 
the mother is subjected to tribal environment at time of 
birth, and if the child remains after birth in the tribe. If 
a Choctaw married a Creek woman and kept her in the 
Choctaw tribe, and her child was born in the Choctaw tribe 
and lived and died in the Choctaw tribe, no one would 
dream of calling that child anything but a Choctaw. Status 
means "state, condition, position of affairs." The mother's 
state is "free," "her position of affairs" is, she is subject to 
the tribal laws and the expression is absolutely meaningless 
when applied to free persons unless used to identify the 
birthplace of the child by identifying the then place of resi- 
dence of the mother. It is impossible for a child to be born 
at any place other than the place which his mother inhabits 
at the time of his birth. His father's residence at that time 
certainly cannot identify his place of birth. If his mother 
is the inhabitant of a country at the time of his birth, the 
child is by birth a citizen and member of that country or 
community. It is true that in highly developed societies, 
upon the maturity of the child, he may if his father be an 
alien of the country of the child's birth, have an election to 
acquire citizenship in the country of his father, but this has 
no application to the tribal life where the child has grown 
to maturity and remains with the tribe of his birth. When 
the Choctaws or the Chickasaws of early days warred with 



43 

other tribes of Indians they won wives from other tribes 
and the woman became Choctaws or Chickasaws as the 
Sabine maidens became Romans, and the children born of 
these unions in the Choctaw and Chickasaw tribes became 
Choctaws and Chickasaws respectively as the children of 
the Roman and the abducted Sabine maiden or matron be- 
came Roman. Much has been said about the injustice of 
permitting the distribution to bastards as members of the 
tribe. Of what country is the Indian bastard with an In- 
dian father and a negro mother, a citizen ? He is not a citi- 
zen of the United States if he were born in the Indian tribe. 
(Elk V. Wilkins, 1 12 U. S., 94.) If he is not a citizen of the 
Indian tribe, his condition is certainly deplorable, for he has 
no country. As said in the appeal of Gibson (154 Mass., 
378), while the bastard is so far as private right of in- 
heritance goes, niilius filius, yet he is filiits pupuli — a child 
of the people. "A citizen is one born in a country without 
regard to the political status or condition of his parents. 
(MacKay v. Campbell, 16 Fed. cases, 161 ; In re Look Tin 
Sing, Fed. Report, 905.) In Lucas v. United States, the 
Supreme Court held, 163 U. S., 616, "the view of the trial 
judge, therefore seems to have been that a finding of fact 
that the deceased was a negro established the jurisdiction 
of the court by reason of a presumption that a negro though 
found within the Indian Territory, was not a member of the 
tribe. In so holding, we think the court erred. If there is 
any presumption in such a case, it rather is that a negro 
found within the Indian Territory associating with the In- 
dians, is a member of the tribe by adoption." And this 
was the opinion of the Supreme Court without any evidence 
as to where the negro was born. All people on the Freed- 
men Roll who are less than 44 years of age today were ac- 
tually born free and all were born in the tribe and bora to 
the tribal environment. And there is no law, treaty, rule, 



44 

regulation or custom which can deny them membership in 
the tribe or full right to distriljution of community property 
while it is awarded to full blood Indians born since 1866, 
without violating the express provisions of the treaty of 
1866 which prohibited discrimination against negroes. 

THE STATUS OF THE FORMER SLAVE, IN THE 
CHOCTAW NATION, AFTER THE TREATY OF 
1866, FROM 1866 TO 1898, AND THE DISTINCTION 
BETWEEN HIS LIMITED STATUS AND THE CHIL- 
DREN BORN FREE AFTER 1866, as shown by the 
Treaty of 1866, the constitution and laws of the Choctaw 
Nation, and the laws of the United States. 

The word "Freedman" is used in the Treaty of 1866 in 
its exact sense to describe the particular individual who had 
once been a slave. That exact use of the word was fol- 
lowed thereafter in the Choctaw laws. For reasons herein- 
after shown while the inchoate rights of the individual for- 
mer slaves of the Choctaws, and the former slaves of the 
Chickasaws were alike in the Treaty of 1866, yet the fonnal 
action of the two tribal authorities was not thereafter the 
same, although we contend that by reason of the interchange- 
able rights and the relation of the two tribes and the in- 
formal acts of the Chickasaws, the action of the Choc- 
taws bound them, but if the rights of these former slaves 
are to be construed to be dependent upon the formal action 
or non-formal action of both of the tribal authorities (a 
conclusion against which we protest), the right under the 
treaty and tribal regulations, of the former slave in each 
tribe might be different. Assuming that the tribal action 
can and does affect his right, what were the rights of the 
individual former slave of the Choctaws after the Treaty 
of 1866? He was emancipated by the 13th amendment 
to the United States Constitution and by the Treaty of 
1866. He was thereafter to be free. That, at least, is 



45 

secure. His status as a citizen was thereafter to be deter- 
mined upon the theory that he was a human being and not 
a chattel. The Treaty of 1866 gave him the following 
rights : 

1st. In the event the laws were passed as provided for 
by the treaty, by the Choctaw Nation, and he elected to 
remain, he was granted : "All the rights, PRIVILEGES and 
IMMUNITIES, including the right of suffrage, of citizens 
of such Choctaw Nation, except in the annuities, moneys 
and public domain of the Nation, and was to be given in- 
dividually and in severalty 40 acres of land. — (Art. 3, 
Treaty of 1866.) 

2d. He was given the guaranty of Article IV of the 
Treaty: "that all laws thereafter SHOULD BE EQUAL 
IN THEIR OPERATION UPON CHOCTAWS, 
CHICKASAWS AND NEGROES." 

3d. He was given, under the words "all persons," the 
right to acquire full citizenship by intei-marriage, and to 
thereby acquire the right of full property distribvition. — 
(Art. 26, Treaty.) 

Until the laws should be passed and until he had the op- 
portunity of accepting this citizenship in the Choctaw Na- 
tion he was to be, by the express terms of the Treaty of 
1866, "upon the same footing as other citizens of the United 
States" (conclusion of Art. 3' of Treaty), and was "to be 
entitled to as much land as they may cultivate for the sup- 
port of themselves and families (Art. 4, Treaty.) 

4th. He was further protected by the prohibition in the 
last sentence of Sec. 4 of Art. VIII, of the Treaty. "No 
law shall be enacted (by the Council) inconsistent with the 
Constitution of the United States, or the laws of Congress 
or existing treaty stipulations with the United States, nor 
shall such COUNCIL legislate upon matters pertaining to 
the legislative, judicial or other organization, lazvs or ens- 



46 

toms of the several tribes or nations, except as herein pro- 
vided for." 

The Choctaw Nation adopted the former slave by formal 
act of the Choctaw Council as hereinafter stated, and im- 
mediately upon said adoption the former slave became in- 
vested with the full rights of a native Choctaw citizen, ex- 
cept that his individual right to annuities, moneys and pub- 
lic domain was limited to 40 acres. He became invested 
with the following rights, privileges and immunities secured 
him by the Choctaw constitution; which, after declaring in 
its preamble, we "do mutually agree with each other to form 
ourselves into a free and independent nation, not inconsistent 
with the Constitution, treaties and laws of the United 
States." Sec. i. Art. i, declares: "that all free men, when 
they form a social compact, are equal in light, and that jw 
man or set of men are entitled to exclusive, separate public 
emoluments or priviloges from the community but in con- 
sideration of public services." Sec. 21 prohibits the Gen- 
eral Council from passing any "bill of attainder, retrospec- 
tive law or law impairing the obligation of contracts." Sec. 
7, Art. 8, confers the suffrage on every free male citizen 
over eighteen years who has been a citizen of the Nation 
for six months. Sec. 6, Art. 5, and Sec. 2, Art. 7, pro- 
vides "no person shall be Principal Chief, Subordinate Chief, 
Senator or Representative, unless he be a free male citizen 
of the Choctaw Nation and a lineal descendant of the Choc- 
taw or Chickasaw race (this subsequently modified to make 
the former slave eligible to all offices except Chief and Prin- 
cipal Chief), and Section 23 declares that any law which 
may be passed contrary to the provisions of the Constitution 
shall be null and void." 

From 1866 to 1883 the fonner slave resided in the Choc- 
taw Nation, supposed to be "enjoying the same rights as 
other citizens of the United States," cultivating the neces- 



47 

sary land for his support as provided by the Treaty of 
1866, but in fact subject to tribal jurisdiction and exercising 
all tribal rights during all that time. 

In 1883 the Choctaw Council definitely adopted into the 
tribe (Act of May 21, 1883, Laws of Choctaw Nation, pp. 
335-336). See appendix for Act in full, the individual 
former slaves, and invested such former slaves with all the 
rights of suffrage, and of citizens of the Choctaw Nation, 
except in the annuity, moneys and the public domain of the 
Nation and also declared such individual former slave to be 
entitled to 40 acres of the lands of the Nation upon the same 
terms as the Choctaws. This 40-acre grant was limited to 
the individual former slave. His individual right to fur- 
ther lands or monies was limited, but in all other respects he 
became a citizen of the Choctaw Nation. His children, 
born in the tribe, born free, could not be other than citizens 
of the Choctaw Nation, and his individual right to acquire, 
himself, full citizenship rights to further annuities, moneys 
and full citizenship rights to public domain by becoming a 
member of the tribe by marriage with an Indian, was not 
denied by any Choctaw law. 

On the contrary, it was expressly recognized by Section 
7 of this same Act of May 21, 1883, which provides that 
intermarriage wi\h ,such former islave citizen shall not 
confer citizenship. This is not a declaration that the former 
slave cannot acquire full citizenship by marrying a citizen. 
It is a declaration that he cannot himself confer citizenship 
upon a won-citizen by marrying a non-citizen. There is no 
inhibition on other Indian citizens conferring full citizenship 
upon the freedman by marriage. Section 8 of the same Act 
is in the past tense, "all such persons of African descent 
who have become citizens shall be entitled to hold any office 
of trust or profit in this Nation except the offices of Prin- 
cipal Chief and District Chief. This recognizes that many 



48 

had, prior to the Act of adoption of 1883, become citi- 
zens by intermarriage. Now what of the children born to 
this adopted (former slave), male or female, born in the 
tribe after 1883? 

Article IX of the Treaty describes the land as held in com- 
mon in 1866 by the members of the said nations. Now 
omitting from consideration for a moment the children born 
of the union of Indian and former slaves, what was the 
status of the children of former slaves whose parents were 
adopted by this Act of 1883 and given citizenship in the 
Choctaw Nation? The children were not citizens of the 
United States, for they were born in the tribal jurisdiction, 
of parents who had all the rights of full citizenship in the 
Choctaw Nation, except that there was a limitation upon 
the parents' individual right to share in the community 
property. The child born after 1866 got no forty acres 
by the Treaty and is not mentioned in the Act of adoption 
of 1883. Why? For the simple reason that no one ever 
dreamed that such a child born in the tribe, of parents 
adopted into the tribe, did not acquire full citizenship as a 
birthright, until the Dawes Commission undertook to re- 
construct the laws of God and man, to disregard the tribal 
law of centuries that he who was born in the tribe and re- 
mained with the tribe, was a full member of the tribe with- 
out any formal act of adoption, to ignore the facts of his- 
tory, for which a nation shed its blood and treasure, and 
enforced the disabilities of slavery upon those born free — 
and finally succeeded in placing these children upon a roll of 
limited rights, when neither by the treaty, the laws of the 
Choctaw nor the laws of the United States, was it ever 
intended or contemplated that, they, even though of full 
negro blood (I speak now of the children of the former 
slave, which fonner slave had been adopted into the tribe) 
should be anything less than members of the tribe with all 



49 

the rights of citizenship and membership in the tribe. The 
right of citizenship never descends in the legal sense. It 
is an incident to birth, always and everywhere — in all 
organized societies of human beings. It may also be ac- 
quired by law or by custom but no law, and no custom has 
ever denied citizenship by birth. U. S. v. Wong Kim Auk. 
169 U. S. (Sup. Ct.) p. 665. 

When the right to hold all offices except chief and Prin- 
cipal Chief was conferred upon these adopted (former 
slaves) citizens can any one doubt that their children were 
not understood to be born to full membership in the tribe? 

When Congress directed by the Act of 1896 a roll to be 
made of all the "freedmen" entitled to citizenship in all the 
tribes and further directed the then Commission to include 
''their names in the list of uieuibcrs to he filed with the 
Commission of Indian Affairs" and when it further de- 
clared it "to be the duty of the United States to establish 
a government in the Indian Territory, which will rectify the 
many inequalities and discriminations now existing in said 
Territory," (Act of June loth, 1896) what did Congress 
mean by the use of the word "freedmen" ? 

A reference to the Cherokee litigation which had just 
concluded in a full victory for the persons of color explains 
it. The Cherokees had guaranteed by their treaty after the 
war to the free negroes, the freedmen and their thereafter 
descendants, equal rights with native Cherokees. 

When the grass money came to be divided the Cherokees 
construed the treaty to mean political rights, and not pro- 
ceeds or avails of the public domain and the Cherokee 
Council passed a law confining the distribution to "Chero- 
kees by blood." Grover Cleveland, then President of the 
United States in 1888 sent a special message to Congress 
calling attention to this discrimination against the persons 
of color and Congress apportioned a part of the money then 



50 

to be distributed, to the negroes. Thereafter, an act was 
passed, Oct., 1890, which permitted the negroes, former 
slaves and their then descendants residing in the Cherokee 
Nation and those negroes also who were free, prior to the 
treaty, to bring suit in the Court of Claims to determine 
their rights in the Cherokee Nation. That case was styled 
Whitmire, Trustee, Cherokee Freedmen v. Cherokee Na- 
tion and the United States. It had just been decided prior 
to the enactment of the law of 1896. It determined the 
rights of all persons of color in the Cherokee Nation to be 
equal to the rights of full blood citizens. It was popularly 
and generally known as the "Freedmen" case, although the 
persons concerned included all persons of African descent. 
The rights of the negroes to full citizenship in the Creek 
Tribe had never been denied. It is apparent that Congress 
in the act of 1896 for the first time, used the word "Freed- 
men" to designate all persons of African descent who either 
by adoption, intermarriage, or by birth, had acquired citi- 
zenship in any and all of the tribes. The word was not con- 
fined to the particular former slave of the Choctaw or Chick- 
asaw tribe whose right had been by the treaty limited to 40 
acres. Congress was not then concerned with his limited 
right and by the way, it is here to be remarked that even 
the fomier slave had not been definitely alloted the 40 acres 
to which he was entitled, but was at that time (1896) oc- 
cupying "as much land as he could cultivate." 

Enrollment upon a "Freedmen" roll under the act of 
1896 was a roll of full citizenship, full membership, full 
rights, and it was not until 1902 when the negligence or ig- 
norance or artful design of the officers or anployees of the 
Dawes Commission changed this full citizenship roll into a 
roll of limited rights and then Congress, unintentionally, 
and not perceiving the wrong done this people, provided that 
transfers shall not be made unless the application for trans- 



SI 

fer should be made prior to Dec, 1902, while these ignorant 
people did not know, and were not informed of the clerical 
change of their status by the roll being branded as a roll of 
limited rights. 

It may be said that there is no express provision in the 
Treaty of 1866 or in the Choctaw Constitution or Choctaw 
laws conferring citizenship rights by birth, upon the chil- 
dren of the former slaves, even though the slave parents 
were adopted into the tribe as citizens. Granted, but there 
are some things so self evident and so generally acknowl- 
edged by civilized man and even by barbarians that they do 
not require to be set out in treaties, and one of these is the 
right of a human being, born free in any organized society, 
to citizenship by birth. 

The right of even the child of the full blood thereafter to 
be born was not set out, the right of the white-Indian child 
thereafter to be born was not set out. There was no vested 
title in any particular individual set out by the treaty of 
1866 and there was no denial or limitation upon the right 
of the free born child of the former slave to full citizenship 
rights, to annuities, moneys and public domain. The limi- 
tation to 40 acres was a limitation upon the individual right 
of his slave ancestor only. 

The only individual property rights guaranteed by the 
Treaty of 1866 were to every Choctaw and Chickasaw (not 
using the words as meaning full blood Choctaws or full 
blood Chickasaws, but meaning citizens or members of the 
tribe (in the same sense that we would now speak of a 
"Missourian" meaning a citizen of Missouri or a "Pennsyl- 
vanian" as a citizen of Pennsylvania), male or female, adult 
or minor, was to 160 acres to be held in severalty, and these 
rights were by Article XXVI extended to all persons who 
"have been citizens by adoption or intermarriage of either 
of said Nations or who may hereafter become such" and of 



52 

course including all who should thereafter be BORN to 
citizenship before the allotment in severalty should take 
place or, otherwise, even the full blood child thereafter born, 
would get no rights ; and as to the moneys and funds which 
should arise, Article 4, of the treaty of 1866, provided that 
after the allotment of lands shall be made in severalty, "all 
the annuities and funds held in trust by the United States 
shall be capitalized or converted into money as the case may 
be, and the aggregate amounts thereof belonging to each na- 
tion, shall be equally divided and paid per capita to the 
INDIVIDUALS THEREOF respectively to aid and assist 
them in improving their homesteads and increasing and ac- 
quiring flocks and herds, and thus encourage them to make 
proper efforts to maintain successfully the new relations 
which the holding of these lands in severalty will involve." 
The child, therefore, of the former slave, was and is un- 
doubtedly 2ir\' individual." There is no limitation of blood 
in the use of the word in that clause of the treaty. The 
words "Individuals of the respective nations" cannot be dis- 
torted to exclude the free born child even though of ///// 
negro blood. He was a member of the tribe. The defi- 
nition of "member" adopted by the Atoka agreement does 
not exclude him. He is not and never was a "Freedman" 
of the Choctaw tribe, because never a slave. He was a 
FREEMAN of the Choctazvs and a member and a citizen 
thereof. 

Over 8,000 of these former slaves were actually adopted 
into the Choctaw-Chickasaw tribe and enrolled as admitted 
Freedmen. Probably not over 3,000 of these individuals 
are still living. They, and they alone, are the technical 
treaty Freedmen of the Choctaw and Chickasaw tribes (ex- 
cept such of them as acquired full citizenship by marriage). 
Their children are native Choctaws and are entitled to be 
enrolled as full members of the tribe. 



53 

RIGHTS OF THOSE BORN FREE AFTER 1866 IN 
EITHER TRIBE, INCLUDING THE CHICKASAW 
TRIBE. 

There is not a single act of the Choctaw Council or the 
Chickasaw Legislature which can be pointed out which 
denies or attempts to deny to the child BORN in the tril^e 
of full negro blood or mixed negro and Indian blood since 
1866 the right to membership in the tribe. 

The Chickasaws permitted the former slaves to occupy 
and cultivate the lands as provided by treaty. While in 1866 
the Chickasaw Legislature passed an act declaring it to be 
the desire of the Chickasaw Legislature that the United 
States hold the $300,000 before referred to, for the benefit 
of the freedmen, and to remove them from the Nation, and 
in 1868 similar action was taken; yet in 1873, they passed 
an act adopting these freedmen (which was never approved 
by Congress as provided by the act of the legislature, and in 
1876 another act was passed, requesting their removal, and ^ 
in 1885 another act was passed requesting their removal. 
Yet none of these acts refer to others than the particular 
individuals who themselves, individually, had once been 
slaves. The act of October 22, 1885, gives this distinction 
great prominence. Note the expression : 

''Freedmen once held as slaves;" note, "left them here 
among us for a long time recognized by iis as occupymg the 
same status as other United States citizens;" also the words 
"freed slaves" in the preamble. The act is as follows : 

See act of Chickasaws October 22, 1885, in Appendix. 

There is absolutely not one word disqualifying even the 
freedman from acquiring rights by intermarriage, as other 
citizens of the United States, and there is not one word in- 
dicating that the word "freedman" was ever intended or 
considered to apply to his descendant, who was free-born. 



^ 



54 

s/ The Chickasaws were attempting to deny to the individ- 
ual once a slave, the right of even limited citizenship and the 
ow^nership of 40 acres, although permitting him to OC- 
CUPY such land as he chose to cultivate and although treat- 
ing him in accordance with the treaty, as upon "the same 
footing as other citizens of the United States." Yet the 
freedman's children or the freedman's children by an Indian 
by the express provisions of Act II, Sec. 3, of the Chicka- 
saw Constitution, "all free male persons * * * \^\-\o are 
hy birth or adoption members of the Chickasaw tribe" were 
citizens. The right of the freedman to acquire citizenship 
and full rights by marriage is expressly admitted by the 
Act of 1875. 

See act * * * Sept. 25, 1875. Oct. 19th, 1876. Ap- 
pendix. 

The United States never removed these freedmen — in- 
dividuals who had once been slaves, from the Chickasaw 
Nation. They continued, under the clause of the treaty of 
1866 "while the said freedmen remain in said nations re- 
spectively, they shall be entitled to as much land as they 
may cultivate for the support of themselves and families" 
and "those remaining shall be upon the same footing as 
other citizens of the United States." They were there dur- 
ing all of that period with the rights to cultivate the vacant 
lands and upon the same footing as other citizens of the 
United States. (193 U. S., ii5-) And the Supreme Court 
of the United States held, when these freedmen attempted 
to get the benefits of the $300,000 trust fund, that having 
remained and the Chickasaws now having alloted them the 
40 acres, that they were not entitled to the $300,000 but 
were upon the same footing as other citizens of the United 
States in the Chickasaw tribes. And as other "citizens of 
the United States" we contend that the slave himself was 
not disqualified from acquiring membership in the tribe by 



55 

marriage, particularly when the article 26 of Treaty of 1866 
provided : 

"The right here given the Choctaws and Chickasaws re- 
spectively shall extend to ALL PERSONS who have be- 
come citizens by adoption or intermarriage of either of said 
nations, or who may liercafter become such." 

The United States or the Choctaws and Chickasaws still 
have the $300,000. But from 1866 to now, there was no 
limitation upon the right of the once individual slave (and 
no one until recently ever dreamed of declaring that there 
was any limitation upon his free born child) to acquire full 
membership in the Chickasaw tribes by marriage and his or 
her children were born to membership in the tribe. 

Note the express provision of the Chickasaw Constitution, 
Section 3, Article i, declaring the rights of those born 
members of the tribe and whatever and however the Chick- 
asaws, by their varying policy towards the slaves (adopt- 
ing them formally in 1873 ^^''^ withdrawing the adoption 
later) may have had upon the individual former slaves, the 
right of children of the former slave, born in the tribal en- 
vironment and subject to the duties and enjoying all the 
rights as other members, as all of these people did, cannot 
be denied. 

The acts of the Chickasaw Council regulating marriage 
and the evidence of marriage which appear in the appendix, 
are all void. They are in direct conflict with the Act of 
Congress of August 9, 1888, which provides what evidence 
of a marriage shall be required of an Indian and a white 
(Chap. 818, 50th Congress, ist Session, 25 U. S. Stat, 
392), and being general and being void as to evidence of the 
marriage of a white man is also void as to evidence of mar- 
riage of a black man, under the Constitution of the United 
States. 

Note also that a late compiler of the Chickasaw Consti- 



56 

tiition and laws undertakes to destroy the far-reaching 
effect of Section 7 of the general provisions of the Chicka- 
saw Constitution by printing the following section : 

Sec. 7. "That every white person, who having married 
an Indian, or who has been adopted by the legislative au- 
thorities of said Nation, shall be entitled to all the rights, 
privileges and immunities guaranteed to them only by the 
thirty-eighth article of the Treaty of 1866, with the Choc- 
taw-Chickasaw Indians." 

This section is actually printed in an edition of the Con- 
stitution printed by the Indian Citizen Print, Atoka, I. T., 
as Section 7 of the Constitution of August 16, 1867, when 
in fact Section 7 of said Constitution grants "all persons 
other than Choctaws" their rights. See appendix. 

When people go to the limit of reprinting Constitutions in 
order to enforce their contentions there is no limit to the 
infamy of man! 

THESE CLAIMANTS HAVE NEVER HAD A DAY 
IN COURT. 

The attorneys for the Nation say the rolls should not be 
opened because all claimants have had their day in court. 
This sounds well and appears to be something that might 
appeal to Anglo-Saxon ears if these people were Anglo- 
Saxons and capable of making an Anglo-Saxon fight, but 
unfortunately for the statement as to these claimants it 
hasn't a semblance of truth. The statement is made on the 
assumption that there has been some court to which these 
people could have individually appealed and was made in 
connection with the reference to the "citizenship" court. 
The committee will recall that the citizenship court was not 
a court to determine citizenship or to determine original ap- 
plications for citizenship. It was a court created, upon the 



57 

representation of the attorneys for the Choctaw Nation, that 
great injustice had been done the Nation by certain judg- 
ments of the United States Court in the territory, with 
jurisdiction only to RE-TRY the cases which had been 
favorably decided in favor of certain claimants to enroll- 
ment, by the United States courts. It was a court which 
had power to strike off or retain on the rolls names before 
then added to the rolls by the United States Court and had 
no other power. These claimants now before the commit- 
tee, had not been enrolled by the United States Court. They 
had been enrolled, on what they supposed was a citizenship 
roll, by the Commission. Citizenship court was created by 
Act of July I, 1902, the same act which subverted and de- 
stroyed the rights of these people en masse. That court 
had no jurisdiction over this class of persons. It was not 
until November 18, 1905, that the Attorney General of the 
United States discovered that the limitation in the Act of 
July I, 1902, prohibited the Interior Department from mak- 
ing transfers from Freedmen rolls to Full Citizenship rolls. 
Very few of these people ever thought it was necessary for 
tb.em to be transferred to a citizenship roll. How can these 
helpless, ignorant people be presumed to have known of the 
technicality which destroyed their rights, when the Attorney 
General's Department had not discovered it until several 
years after it was enacted, and then the time had gone by for 
any correction to be made BY ANY COURT BECAUSE 
OF LACK OF JURISDICTION. No court can ever set- 
tle these questions. It is not a question of individual con- 
crete cases; it is not questions of fact which this committee 
should be called upon to determine. It is absolutely im- 
perative, however, that this committee determine, and de- 
termine speedily, the questions of law. The committee will 
do more to finally settle the affairs of this tribe by careful 
consideration of the laws already passed, by which they will 



58 

be convinced that the purpose of the general legislation has 
been subverted by cunning distortion of a word here and 
there; and a few simple enactments to correct these errors 
and distortions under which new enactment the Department 
of the Interior may go ahead and determine facts expedi- 
tiously, will do more to solve the complicated problem than 
if Congress should create a dozen courts or a dozen com- 
missions to hear facts. I submit the intent of the treaty 
and the plain intent of Congress has been subverted by 
legislation. The subversion must be corrected by legisla- 
tion. I am inclined to believe, after a careful study of the 
testimony taken before the respective committees that the 
Dawes Commission or any member of it, was not guilty of 
fraud. The injustice and inequalities here complained of is 
the result of a misconception of the powers and the rights 
of the purely ornamental tribal organizations and of the 
mistaken notion which the Indians have conceived that this 
domain is a matter of their private inheritance and that 
while they shall individually themselves receive the proceeds 
of all the lands, with the great increase thereto which civili- 
zation has given, on the theory that they are the living suc- 
cessors of the persons once composing a political community, 
they deny that right to others who have equal claims in law 
and in nature to the same benefit. Add to this considera- 
tion, moving a large number of people, the spirit of intoler- 
ance against a race formerly held in slavery, and the baleful 
results followed naturally and inevitably, unless the super- 
intending power of the United States had been constantly 
and intelligently manifested. 

Justice, gentlemen, has been long absent from her throne 
in the Indian country where the right of a "nigger" was in 
any way involved. Intolerance, Ignorance, Error, and per- 
haps, sometimes, Fraud, has usurped and occupied her place. 
We humbly pray that the blind goddess who weighs true 



59 

with her scales, the claims of white, of Indian, of white- 
Indian, of Indian-negro, and negro-Indian shall now be re- 
stored to her judgment seat, and that her reign so auspi- 
ciously begun in 1893, and which continued uninterruptedly 
until 1898, shall again prevail. 



6o 



APPENDIX. 

Extracts from Constitution and all laws affecting citi- 
zens and intermarriage adopted in force in Choctaw Na- 
tion between 1866 and 1894. 

"FROM CONSTITUTION AND LAWS OF THE 
CHOCTAW NATION, together with TREATIES 
of 1837, 1855, 1865 and 1866. 



PUBLISHED BY AUTHORITY OF THE GENERAL 
COUNCIL, by Durant, and Davis Homer and Ben 
Watkins, Asst. Compilers. 



Dallas, Texas. John F. Worley, 
Printer & Publisher. 
1894." — (Congressional Library.) 

CONSTITUTION. 

We, the representatives of the people inhabiting the 
Choctaw Nation, contained within the following limits, to 
wit : * * * do ordain and establish the following con- 
stitution and form of government, and do mutually agree 
with each other to form ourselves into a free and inde- 
pendent Nation, not inconsistent with the Constitution, 
Treaties and Laws of the United States, by the name of 
the Choctaw Nation. 

ARTICLE I. 
Section i. That all free men, when they form a social 



6t 

compact, are equal in right, and that no man or set of 
men arc entitled to exclusive, separate public emolument or 
privileges from the community, but in consideration of 
public services. 

Section 2. That no free man shall be taken or im- 
prisoned or disseized of his freehold liberties or privileges, 
or outlawed or exiled, or in any manner destroyed or de- 
prived of his life, liberty, and property, but by the judgment 
of his peers or the law of the land. 

Section 21. * * * The general council shall pass 
no bill of attainder, retrospective law, nor law impairing 
the oblig-ation of contracts. 



^b 



ARTICLE III. 

Section 3. No person shall be a Senator who shall not 
have attained the age of thirty years and been one year a 
citizen of this Nation, and who shall not, when elected, be 
an inhabitant of that district as least six months preceding 
his election for which he shall be chosen. 

ARTICLE V. 

Section 6. No person shall be eligible to the office of 
principal or district chief unless he shall have attained the 
age of thirty years, and have been an inhabitant of the 
Choctaw Nation at least five years next preceding his 
election. 

ARTICLE VII. 

Section 2. No person shall be principal chief, or sub- 
ordinate chief, senator or representative, unless he be a 
free male citizen of the Choctaw Nation, and a lineal 
descendant of the Choctaw race. 

Section 7. EVERY free male citizen of this Nation 



62 

who shall have attained to the age of eighteen years, and 
who shall have been a citizen of the Nation six months, 
shall be deemed a quahfied elector, and shall be entitled to 
vote in the county or district where he may have been 
actually resided at least one month preceding the election 
for each and every office made elective in this Nation. — 
(Constitution of the Choctaw Nation, pp. 22-23.) 

Section 23. That all the provisions in the Constitution, 
now in existence, and not revised or adopted by this Con- 
Stitution arc hereby DECLARED null and void ; and that 
any law which may be passed contrary to the provisions 
herein specified shall be null and void ; and all rights and 
powers not herein granted or expressed shall be reserved 
unto the people. — (Constitution of the Choctaw Nation, 
P-25-) 

LAWS. 

Intermarriage. 

Section i. (i) Be it enacted by the general council 
of the Choctaw Nation assembled; Any white man, OR 
CITIZEN OF THE United States or of any foreign gov- 
ernment, desiring to marry a Choctaw woman, citizen 
of the Choctaw Nation, shall be and is hereby required, to 
obtain a Hcense for the same from one of the circuit clerks 
or judges, of a court of record, and make oath or satis- 
factory showing to such clerk or judge, that he has not a 
surviving wife from whom he has not been lawfully di- 
vorced; and unless such information be freely furnished to 
the satisfaction of the clerk or judge, no license shall issue; 
and every white man or PERSON applying for a license 
as provided herein, shall, before obtaining the same, be re- 
quired to present to the said clerk or judge, a certificate of 
good moral character, signed by at least ten respectable 



63 

Choctaw citizens by blood, who shall have been acquainted 
with him at least twelve months immediately preceding 
the signing of such certificate; and before any license, as 
herein provided, shall be issued, the person applying shall 
be and is hereby required to pay to the clerks or judge, the 
sum of twenty-five dollars; and be also required to take the 
following oath: ''1 do solemnly swear that I will honor, 
defend, and submit to the constitution and laws of the 
Choctaw Nation, and will neither claim nor seek from the 
United States Government or from the judicial tribunals 
thereof, any protection privileges, or redress incompatible 
with the same as guaranteed to the Choctaw Nation by the 
treaty stipulations entered into between them, so help me 
God." 

Note.— This act not applicable to Freedmen who were 
adopted under the Act of of May 21, 1883, they, after May 
21, 1883, having become citizens of the Choctaw Nation. 

2. Marriages contracted under the provisions of this act 
shall be solemnized as provided by the laws of this Nation 
or otherwise null and void. 

3. No marriage between a citizen of the United States 
or any foreign nation, and a female citizen of this Nation, 
entered into within the limits of this Nation, except as 
hereinbefore authorized and provided, shall be legal, and 
every person who shall engage and assist in solemnizing 
such marriage shall upon conviction be fined fifty dollars, 
and it shall be the duty of the district attorney in whose 
district such person resides to prosecute such person before 
the circuit court and one-half of all fines arising under this 
act shall be equally divided between the sheriff and the 
district attorney. 

4. Every person performing the marriage ceremony un- 
der the authority of a license provided for herein shall 
be required to attach a certificate of marriage to the back 



64 

of the license and return it to the person in whose behalf it 
was issued, who shall within thirty days therefrom, place 
the same in the hands of the circuit clerk, whose duty it 
shall be to record the same and return it to the owner. 

5. Should any man or woman, a citten of the United 
States or of any foreign country, become a citizen of the 
Choctaw Nation by intermarriage, as herein provided, and 
be left a widow or widower, he or she shall continue to en- 
joy the right of citizenship; unless he or she shall marry a 
white man or woman, or person as the case may be, havmg 
no rights of Choctaw citizenship by blood; in that case his 
or her rights acquired under the provisions of this act shall 

cease. 

6 Every person who shall lawfully marry, under the pro- 
vision of this act, and afterwards abandon his wife or 
her husband, shall forfeit every right of citizenship, and 
shall be considered an intruder and removed from this 
Nation, by order of the principal chief. (P. 225 Ibid.) 

Approved Oct. 30, 1888. 

Note.— This act conflicts with Act of U. S. Congress of 
August 9, 1888 (25 Stat. L., 392)- 

DOMESTIC RELATIONS. 

Marriage. 

Section i. Be it enacted by the general council of the 
Choctaw Nation assembled: Every male who shall have 
arrived at the full age of eighteen years, and every female 
who shall have arrived at the full age of sixteen years, shall 
be capable in lazv of contracting marriage, provided no 
other legal prohibition exists. But if under these ages their 
marriage shall be void, unless free consent by the parents 



65 

and relations or guardian have been first obtained. Who- 
ever shall contract marriage in fact, contrary to the pro- 
hibition of this section ; and whoever shall knowingly 
solemnize the same, shall be both deemed guilty, one or 
both, of high misdemeanor, and shall upon conviction 
thereof, be fined or imprisoned at the discretion of the 
court. It shall be lawful for all the judges of this Nation 
and preachers of the gospel to solemnize the rites of 
matrimony and issue certificates thereof, if requested, and 
be allowed and receive for every such service two dollars, 
to be paid by the parties so joined together. All marriages 
which are prohibited by law, on account of consanguinity 
bctzvecn the parties, or on account of either of them having 
a former husband or wife then living, shall, if solemnized 
within this Nation, be absolutely void, without any decree 
of divorce, or other legal proceedings. — (Laws of the 
Choctaw Nation, p. 233.) 

Approved Oct. 30, 1882. 
Page 243. Ibid. 

Section i. Act of Oct. 30, provides for the organization 
of three companies of militia, subordinate officers and mem- 
bers of which to be selected by the captains, which captains 
are to be appointed by the principal chief out of "those 
Choctazu citizens of their respective districts between the 
ages of eighteen and fifty years." It is a matter of general 
knowledge that a large number of these mixed bloods were 
members of this militia. 

Note. — This Statute not referred to in Departmental 
decisions. The Act of the Choctaw Council of March 16, 
1858, is, however, referred to. That act prohibited "co- 
habitation" with a negro. The Secretary of the Interior in 
his communication to the President gives the date of this 
as Oct. 30, li 



66 

LAWS. 

Intermarriage Betzveen Choctazvs and Negroes. 

Section 8. Be it enacted b}^ the general council of the 
Choctaw Nation assembled: It shall not be lawful for a 
Choctaw and a negro to marry; and if a Choctaw man or 
Choctaw woman should marry a negro man or negro 
woman he or she shall be deemed guilty of a felony, and 
shall be proceeded against in the circuit court of the Choc- 
taw Nation having jurisdiction the same as all other fel- 
onies are proceeded against; and if proven guilty shall re- 
ceive fifty lashes on the bare back. (Page 206.) 

Note. — No date of enactment given. Marked in blue 
pencil "Repealed, P. 225." This enactment plainly incon- 
sistent with Act of Oct. 30, 1888, and Act of Oct. 30, 1882. 

In the preface to the constitution and laws of the Choc- 
taw Nation appealed for A. R. Durant, Mr. Durant says : 

"The Choctaws have for many years urgently demanded 
that the laws of the Nation be printed in both English and 
Choctaw, then each language bound in one volume 

"We find some laws in the Code compiled by Hon. J- P- 
Folsom, 1869, not embraced in the Code compiled by Hon. 
J. H. Standley, and as they have never been repealed, we 
thought best to give them a place in this volume and leave 
the question of validity to be decided by the proper tri- 
bunal." 

Note by Cantwell : 

This act we do not regard as of any consequence and bears, 
we think, no relation to the rights of children to citizenship. 
It is referred to in the Departmental decisions as an Act 
passed in 1858, prohibiting cohabitation with negroes. The 
original Act of 1858, was originally printed only in the 



/ 



^7 

Choctaw language. It is possible that the prohibited act 
was an act intended to prevent illicit cohabitation with a 
neofro — illicit intercourse with slaves. The translation and 
insertion as an Act of 1888, in view of the statement of the 
compiler of these laws as above, and the additional fact 
that no date of enactment is given, warrants suspicion of 
the authenticity of the act. 

As Assistant Attorney-General Campbell points out, it 
imposes no bar to citizenship upon the issue and would not 
apply to mulattoes, quadroons, or mestizos. 



From CONSTITUTION AND LAWS OF THE CHOC- 
TAW NATION, together with the TREATIES of 
1837, 1855, 1865 and 1866. Worley, Printer, 1894. 

LAWS OF THE CHOCTAW^ NATION. 
BILL HI. 

AN ACT ENTITLED AN ACT DEFINING THE 
QUANTITY OF BLOOD NECESSARY FOR 
CITIZENSHIP. 

Note. — By formal adoption. 

P. 266. 

Section i. Be it enacted by the general council of the 
Choctaw Nation assembled : That hereafter all persons 
non-citizens of the Choctaw Nation, making or presenting 
to the general council petitions for rights of Choctaws in 
this nation shall be required to have one-eighth Choctaw 
blood and shall be required to prove the same by compe- 
tent testimony. 



68 

Section 2. Be it enacted that all applicants for rights 
in this Nation shall prove their mixture of blood to be 
white and Indian. 

Section 3. Be it further enacted that no persons con- 
victed of any felony or high crime shall be admitted to the 
rights of citizenship within this Nation. 

Section 4. Be it further enacted that this act shall not 
be construed to afifect persons within the limits of the 
Choctaw Nation now enjoying the rights of citizenship. 

Section 5. Be it further enacted that this act take ef- 
fect and be in force from and after its passage. 

Note. — The above appears under Acts of 1886, but no 
date given of its passage. 

This only applies to petitions for rights of adoption to 
be granted by the general council and has no relevancy 
whatever to the accjuisition of citizenship by marriage. 



AN ACT REQUIRING THE MANNER OF APPLI- 
CATION OF CITIZENSHIP. 

BILL XL. 

Be it enacted by the general council of the Choctaw 
Nation assembled : That hereafter all claimants for citizen- 
ship in the Choctaw Nation shall pay to the national treas- 
ury the sum of one hundred dollars for each person asked 
TO BE ADOPTED, and that no petition shall be enter- 
tained by the committee for citizenship unless accompanied 
by the national treasurer's receipt as above required, and 
that this act shall take effect and be in force from and 
after its passage. — (Laws of the Choctaw Nation, p. 285.) 

Approved November 6, 1888. 



69 



AN ACT RELATING TO CITIZENS OF THE CHOC- 
TAW NATION TAKING THE OATH OF ALLE- 
GIANCE TO THE UNITED STATES. 

BILL LVII. 

Be it enacted by the general council of the Choctaw 
Nation assembled : That any member of the Choctaw tribe 
of Indians, either by blood, adoption or by marriage into 
said tribe and subject to the government of the Choctaw 
Nation, who has taken the oath of allegiance to the govern- 
ment of the United States, shall be disqualified to hold any 
office of trust or profit in the Choctaw Nation and to 
vote at any election in said Nation, and to be impanneled 
as a juror in any court under the government of said 
Choctaw Nation. 

This act shall take effect from and after its passage. — 
(Laws of the Choctaw Nation, p. 297.) 

Approved October 25, 1890. 



THE ACT OF MAY 21, 1883. 

(Laws of Choctaw Nation, pp. 335-336.) 

Sec. I. Be it enacted by the general council of the Choc- 
taw Nation assembled : That all persons of African de- 
scent, resident in the Choctaw Nation at the date of the 
treaty of Fort Smith, Sept. 13, 1865, and their descendants 
formerly held in slavery by Choctaws or Chickasaivs, are 
hereby declared to be entitled to, and invested with all the 
rights of suffrage, of citizens of the Choctaw Nation, ex- 
cept in the annuity moneys and the public domain of the 
Nation. 



70 

Sec 2. Be it further enacted that all said persons of 
African descent, as aforesaid and their descendants, shall 
be allowed the same right of process, civil and criminal, 
in the several courts of this Nation, as are allowed to 
Choctaws, and full protection of persons and property is 
hereby granted to all such persons. 

Sec. 3. Be it further enacted : That all said persons are 
hereby declared to be entitled to forty acres each of the 
lands of the Nation to be selected and held upon the same 
terms as the Choctaws. 

Sec. 4. Be it further enacted that all said persons afore- 
said are hereby declared to be entitled to equal educational 
privileges and facilities with Choctaws so far as neighbor- 
hood schools are concerned. 

Sec. 5. Be it further enacted that all said persons that 
shall elect to remove and do actually and permanently re- 
move from the Nation, are hereby declared to be entitled 
to one hundred dollars per capita, as provided in said third 
article of the Treaty of 1866. 

Sec. 6. Be it further enacted : That all said persons 
who shall decline to become citizens of the Choctaw Na- 
tion and who do not elect to remove permanently from the 
Nation, are hereby declared to be intruders on the same 
footing as other citizens of the United States resident here- 
in and subject to removal for similar causes. 

Sec. 7. Be it further enacted that intermarriage with 
such freedmen of African descent who were formerly held 
as slaves of the Choctaws and have become citizens shall 
not confer any rights of citizenship in this Nation and all 
free tnen who have married or may hereafter marry freed- 
zvomen who have become citizens of the Choctaw Nation, 
are subject to the permit laws, and allowed to remain 
during good behavior only. 

Sec. 8. Be it further enacted : That all such persons of 



71 

African descent, who liave become citizens of the Choctaw 
Nation shall be entitled to hold any office of trust or profit 
in this Nation, except the offices of principal chief and 
district chief. 

Sec. 9. Be it further enacted : That the National Secre- 
tary shall furnish a certified copy of this act to the Secre- 
tary of the Interior. And this act shall take effect and be 
in force from and after its passage. 

Approved May 21, 1883. 

Note.— This act establishes beyond controversy: 

1st. That the Choctaws correctly construed the agree- 
ment in the Treaty of 1866, and that the word "Freedman" 
applied only to the former slaves who were resident in the 
Nation at the date of the Treaty of Fort Smith, Sept. 13, 
1865, and to those descendants of such slaves residents 
who had themselves also been held in slavery, wherever 
they w^ere resident. 

2nd. The payment of $100 each was made to 105 per- 
sons, former slaves, who elected to remove from the Choc- 
taw country (page 6 Senate Document No. 505, 60th 
Congress, ist Session.) 

3rd. That all of the former slaves who remained were 
entitled to 40 acres each and full rights of suffrage and 
either elected to accept or thereafter become intruders unless 
they had, otherwise than by the Treaty provision, that 
is by intennarriage, become entitled to full citizenship, 
8534 remained and became citizens. See Senate Doc. 505, 
60th Congress, ist Session. 

4th. That no provision was made by this act for the free 
born, that is the children born between 1865 and 1883, and 
it was assumed that they were subject to none of the dis- 
abilities imposed upon those who had once been held in 
slavery. 



72 

5th. Tliat Section 7 of the above act recognizes that 
many of the freedmen and freedwomen had accjuired full 
rights as citizens by intermarriage with Indians and that 
Section 7 was enacted to prevent them, in event of the 
death of their Indian spouse from conferring citizenship 
by marriage on a second spouse, who was not a citizen. 
The effect of this was that the freedwoman who had ac- 
quired full citizenship by marriage, upon the death of her 
Indian spouse could not herself confer citizenship upon a 
non-citizen by remarriage. 

6th. Section 8 of the above act expressly recognizes that 
membership had, prior to this act, been acquired by former 
slaves by marriage and these were made eligible to hold 
any office except Principal Chief or District Chief. 

In the light of the above act how trivial seem the petty 
quibbles of the academicians about the penal laAvs of the 
Choctaws passed in 1858, prohibiting cohabitation with a 
negro ! 



CHIKASAW CONSTITUTION OF AUGUST 16, 

1867. 

The following provisions appear in the Constitution 
adopted by the Convention at Camp Harris August 16, 
1867, which it is to be noted was adopted after the Treaty 
of 1866, and after the emancipation of the slazfes. This 
Constitution is in marked contrast to the Constitution of 
the Chickasaw Nation of 1856. The following provisions 
appear in the book now in the Congressional Library, the 
title page of which is 

"CONSTITUTION, LAWS AND TREATIES 

of the 

CHICKASAWS 



73 

By authority. 

Sedalia, Missouri. 

Sedalia Democrat Company, Printers. 

1878." 

ARTICLE I. 
Bill of Rights. 

"Section 2. All freemen, when they form a social com- 
pact have equal rights, and no man or set of men is en- 
titled to exclusive, separate, public emoluments, or privi- 
leges, but in consideration of public services. (Page 4. 
Ibid.) 

ARTICLE II. 

Section 3. All free male persons of the age of nine- 
teen years and upwards, who are by BIRTH or ADOP- 
TION, members of the Chickasaw tribe of Indians and 
not otherwise disqualified, and who shall have resided six 
months immediately preceding any election in the Chicka- 
saw Nation, shall be deemed qualified electors, under the 
authority of this Constitution. (Page 5, Ibid.) 

ARTICLE V. 

Sec. 3. No person shall be eligible to the ofiice of 
Governor unless he shall have attained the age of thirty 
years and shall have been a resident of the Nation for one 
year next preceding his election. Neither shall any person, 
except a Chickasaw by birth, or an adopted member of the 
tribe, at the time of the adoption of this Constitution be 
eligible to the office of Governor. (Page 9, Ibid.) 

Section 7. (General Provisions.) ALL PERSONS, 
OTHER THAN CHICKASAWS, who have become citi- 



74 

zens of this Nation, by MARRIAGE or adoption and have 
been confirmed in all their rights as such, by former con- 
ventions, and all such persons as aforesaid, who have 
become citizens by adoption by the Legislature, or by inter- 
marriage with the Chickasaws, since the adoption of the 
Constitution of August i8, A. D. 1856, shall be entitled 
to all the rights, privileges and immunities of native citi- 
zens. ALL WHO MAY HEREAFTER BECOME 
CITIZENS, EITHER BY MARRIAGE OR ADOP- 
TION, SHALL BE ENTITLED TO ALL THE PRIV- 
ILEGES OF NATIVE BORN CITIZENS, Without be- 
ing eligible to the office of Governor. (Pages 15-16, Ibid.) 

Section 10. (General Provisions.) The Legislature 
shall have power, by law, to admit or adopt as citizens of 
this Nation, such persons as may be acceptable to the 
people at large." (Page 16, Ibid.) 

Here note, that the Treaty of July 2, 1866, after provid- 
ing that the Choctaws and Chickasaws should thereafter 
change their lands from a holding in common to a holding 
in severalty and providing for individual selections of lands 
expressly provides, by Article 26 : 

"The right here given to Choctaws and Chickasaws re- 
spectively, shall extend to all persons who have become 
citizens by adoption or INTERMARRIAGE of either of 
said Nations, or who may hereafter become such." 
(From Chickasaw Laws, Sedalia Democrat, G. P. note 

1878.) 

AN ACT TO RECORD MARRIAGES, ETC. 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation, That from and after the passage of this act, 
all persons marrying in this Nation shall have the same 



75 

recorded in the clerk's office of the county court in the 
county in which they may reside. 

Section 2. Be it further enacted, That ah persons neg- 
lecting to record their marriages within one month from 
the time they are married, shall be fined in a sum not less 
than five, nor exceeding ten dollars, at the discretion of the 
court having jurisdiction of the same. 

Section 3. Be it further enacted that all fines imposed 
under this act shall be collected by the sheriff or constable 
by order of the county court, in the county in which such 
violation may have occurred. 

Section 4. Be it further enacted, That all marriages in 
this Nation shall be solemnized by any judge or ordained 
preacher of the gospel; for every couple joined together in 
the bonds of matrimony, the person pronouncing the cere- 
mony shall, for every such service, receive the sum of one 
dollar from the persons joined together. 

Section 5. Be it further enacted. That all persons who 
are living together out of wedlock shall be compelled by 
the county judge to be lawfully joined together in the bonds 
of matrimony ; and any person refusing to be lawfully joined 
together shall be compelled to pay a fine of not less than 
twenty-five, nor exceeding fifty dollars. 

Section 6. Be it further enacted that the county judge 
shall cause all fines imposed under the above act to be col- 
lected by the treasury, for county purposes." — (Approved 
October 12, 1876. Pages 63-64, Ibid.) 

AN ACT TO LEGALIZE MARRIAGES SOLEMNIZED 
BY LICENSED PREACHERS. 

PREAMBLE. 

Whereas, It is enacted in section 4, of the "Act to record 



76 

marriages," that any judge of the Chickasaw Nation, or 
any ordained preacher of the gospel, shall have the power 
to perform the marriage ceremony. 

And whereas, Many of our citizens have been united in 
the bonds of matrimony by preachers not ordained, nor au- 
thorized to marry individuals by the regulations of the 
church of which such preachers belong; 

And whereas, The District Court of the Chickasaw Na- 
tion, in the county of Pontotoc, at the January term, did 
decide that all such marriages were unauthorized by the 
church to which said preachers belong, and consequently 
both canonically and legally void; 

And whereas, The persons so marrying, as well as the 
licensed preachers perfonning the ceremony, did the same 
in good faith and without any doubt whatever of the law- 
fulness of it; 

And whereas, By the decision in question, the parties liv- 
ing together are not husband and wife, nor the children of 
such marriage legitimate, therefore, 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation, That every marriage which has been solem- 
nized by any unordained licensed preacher, within the limits 
of the Chickasaw Nation, before the passage of this act, is 
hereby legalized, and every child born in marriage, the off- 
spring of it, is hereby declared to be legitimate, and shall 
be entitled to all the rights, privileges and immunities there- 
of, just the same as if the marriage ceremony had had been 
performed by any lawful judge of this Nation, or any or- 
dained preacher of the gospel, as contemplated in the fourth 
section specified in the preamble of this act. 

Section 2. Be it further enacted. That all marriages 
which may hereafter be solemnized by licensed preachers 
shall be lawful, just the same as if the ceremony was per- 
formed by an ordained minister of the gospel, or judge of 



77 

this Nation; and this act shall be in force from and after 
its passage. Approved Oct. 12, 1876. — (Laws of the Chick- 
asaw Nation, pp. 64-65.) 

AN ACT IN RELATION TO DIVORCES. 

Section 4. Be it further enacted, That a divorce from 
the bonds of matrimony shall not in anywise affect the legi- 
timacy of the children thereof, and it shall be lawful for 
either party after the dissolution of the marriage, to marry 
again. Approved October 12th, 1876. — (Laws of the 
Chickasaw Nation) page 68. 

AN ACT TO REPEAL THE OLD CHOCTAW LAWS. 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation, That all laws and parts of laws which passed 
the Choctaw Council prior to the adoption of the Constitu- 
tion of the Chickasaw Nation, are hereby declared null and 
void within the limits of the Chickasaw Nation, except 
such laws or parts of laws, as may govern any judicial pro- 
ceedings commenced prior to the adoption of said Consti- 
tution, as is provided for in the 4th Article of a treaty made 
and concluded at Washington City, between the United 
States and the Choctaws and Chickasaws. Approved Oc- 
tober 1 2th, 1876. — (Laws of the Chickasaw Nation) page 
70. 

AN ACT ORGANIZING MILITIA IN THE CHICKA- 
ASAW NATION. 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation That from and after the passage of this act, 



78 

all male persons, members of the CJiickasaw Nation, or tribe 
who are citizens by birth or adoption; and of able bodies 
and sound mind, over the age of eighteen and under thirty 
years of age, except scholars attending school, shall be 
deemed eligible for militia duty. Approved Oct 9, 1876. — 
(Laws of the Chickasaw Nation) page 82. 



AN ACT IN RELATION TO MARRIAGE UNDER 
CHOCTAW LAW. 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation, That from and after the passage of this act, 
all persons that were married under the Choctaw law, or 
by mutual consent of parties who lived together as man or 
wife six months previous to the adoption of the Constitu- 
tion of the Chickasaw Nation, dated August 30th, 1856, 
shall be compelled by the county judge to have the same es- 
tablished upon oath, and recorded in the office of the county 
clerk. 

Section 2. Be it further enacted. That it shall be the 
duty of the county judges to notify the people of their re- 
spective counties of the passage of this act; any person or 
persons who refuse or neglect to have their marriage re- 
corded within three months after the passage of this act, 
shall be compelled to pay a fine not less than five, nor ex- 
ceeding fifteen dollars, at the discretion of the court. 

Section 3. Be it further enacted. That all fines imposed 
under this act shall be collected by the sheriff or constable 
and be placed in the county treasury. Approved Oct. 17th, 
1876. — (Laws of the Chickasaw Nation) page 96. 



RESOLUTIONS IN RELATION TO THE FREED- 



79 

MEN AND THEIR DESCENDANTS IN THE 
CHOCTAW AND CHICKASAW NATIONS. 

Whereas, The Governor of the Chickasaw Nation, has 
recommended to this Legislature that commissioners be sent 
on the part of the Chickasaw Nation, to confer with com- 
missioners on the part of the Choctaw Nation, in relation 
to the Freedmen in said Nations, and to agree with the 
Choctaws upon some plan for the final settlement of all 
questions relating to said Freedmen. 

And whereas. It is understood that the Governor is in 
favor of the removal of all Freedmen, former slaves of the 
Choctaws and Chickasaws, from the limits of the Choctaw 
and Chickasaw country, is of the opinion that the same may 
be accomplished, therefore 

Section i. Be it resolved by the Legislature of the 
Chickasaw Nation, That four commissioners, one from each 
county of the Chickasaw Nation, shall be elected by joint 
vote of the Senate and House of Representatives of the pres- 
ent session of the Legislature, to visit the capital of the 
Choctaw Nation, during the next regular session of the 
general council of said Nation, with instructions to confer 
with commissioners on the part of the Choctaw Nation, and 
agree upon some plan, whereby the Freedmen, fanner slazfcs 
of the Choctazvs and Chickasaws, and their descendants, 
shall be removed from and kept out of the limits of the 
Choctaw and Chickasaw country. 

Section 2. Be it further resolved. That the commis- 
sioners provided for in the foregoing section shall receive 
the same pay, while actually engaged in the business of 
their mission, as members of the Legislature, and may ap- 
point a secretary who shall receive the same pay as one of 
the commissioners ; and said commissioners shall make a 
full report of all their official proceedings to the Legislature, 



8o 

at the next meeting thereof. Approved Oct. iSth 1876. — 
(Laws of the Chickasaw Nation) pp. 148-149. 

v^ AN ACT TO REPEAL AN ACT IN RELATION TO 
INTERMARRIAGE OF CITIZENS OF THE 
UNITED STATES AND MEMBERS OF THE 
CHICKASAW TRIBE OR NATION OF INDIANS, 
APPROVED SEPTEMBER 20, 1872, AND FOR 
OTHER PURPOSES. 

Section i. Be it enacted by the Legislature of the Chick- 
asaw Nation, That an act approved September 20, 1872, 
forbidding marriages between citizens of the United States 
and members of the Chickasaw Tribe or Nation of Indians, 
unless such citizen of the United States shall have resided 
within said Nation two years preceding such marriage, un- 
der a pennit from the Chickasaw authorities be and the 
same is hereby repealed, 
y Section 2. Be it further enacted. That no marriage be- 
tween a citizen of the United States and a member of the 
Chickasaw Tribe or Nation of Indians, shall take place or 
be solemnized within the Chickasaw Nation, unless a li- 
cense shall have been first obtained from the county judge 
of the county where at least one of the parties to such mar- 
riage shall reside; and no judge of the county court shall 
issue such license except upon the payment of a license fee 
of one dollar and fifty cents, and upon satisfactory proof 
before him that such citizen of the United States is a per- 
son of good moral character and industrious habits, and 
that such member of the Chickasaw Nation is competent 
to contract marriage, or has the consent of his or her pa- 
rents or guardian to marry such citizen of the United States ; 
and hereafter no marriage between a citizen of the United 



8i 

States and a member of the Chickasaw Nation shall confer 
any right of citizenship, or any right to improve or select 
lands within the Chickasaw Nation unless such marriage 
shall have been solemnized in accordance with the laws of 
tlie Chickasaw Nation ; and all marriages between citizens 
of the United States and members of the Chickasaw Nation 
shall be duly certified, by the officer or minister of the gospel 
who shall have performed the marriage ceremony, to the 
clerk of the county court of the county where such mar- 
riage took place, who shall record the same ; and every such 
ofiicer or minister of the gospel (if a citizen of the Chicka- 
saw Nation) who shall marry a citizen of the United States 
to a member of the Chickasaw Nation without such license, 
shall be subject to a fine of fifty dollars, to be imposed by 
the county court and collected as other fines, for county 
purposes ; and if such minister be a citizen of the United 
St3-tes, he shall be removed from the Nation. 

Section 3. Be it further enacted, That no marriage 
heretofore solemnized, or which may hereafter be solemn- 
ized, between a citizen of the United States and a member 
of the Chickasaw Nation, shall enable SUCH citizen of the 
United States to confer any right or privilege whatever, in 
this Nation, by again marrying another citizen of the 
United States, or upon such other citizen of the United 
States or their issue, and in case any citizen of the United 
States shall have married a member of the Chickasaw Na- 
tion, and shall have heretofore abandoned her, or should 
hereafter voluntarily abandon or separate from such mem- 
ber of the Chickasaw Nation, such citizen of the United 
States shall forfeit all right acquired by such marriage in 
this Nation, and shall be liable to removal as an intruder, 
from the limits thereof. 

Section 4. Be it further enacted, That this Act shall not 
be construed so as to interfere with marriages solemnized 



82 

prior to the treaty of 1866; and that it take effect and be in 
force from and after its passage. Approved October 19th, 
1876. — (Laws of the Chickasaw Nation) pages 152-3-4. 



LAWS OF THE CHICKASAW NATION. 1878. 
REFUGEE BILL. 

Page 103. — Sec. i. 
v^ Be it enacted by the Legislature of the Chickasaw Na- 

tion, That the Governor be and he is hereby authorized and 
requested to issue forthwith a "General Order" requiring all 
intruders, refugees and negroes, not embraced within the 
meaning of the "treaty of April, 1866," to forthwith leave 
the Chickasaw Nation, and forever stay out of the same, 
or procure, by a recommendation of good citizens, a per- 
mit to remain within the Nation ; and the Governor is here- 
by requested to use discretion and caution in giving said 
permits, in order that only persons of good moral char- 
acter, and those who will respect all the laws of the Chicka- 
saw Nation, can procure said permits. Approved, October 
17th, 1876. 



AN ACT CONFIRMING THE TREATY OF 1866. 

Pages 103-104. — Sec. i, Act of 1877. 

Be it enacted by the Legislature of the Chickasaw Nation, 
That whereas, a treaty was concluded at Washington City 
on the 28th of April, 1866, by commissioners duly appointed 
on the part of the Chickasaws and Choctaws, and the 
United States Government, which treaty was ratified with 
amendments by the United States Senate, and confirmed by 
the President, the Chickasaw Legislature does hereby give 



83 

its assent, and confirm the said treaty and amendments 
made by the Senate of the United States. 

Pages 103-104. Sec. 2. 

Be it fnrther enacted, That the Chickasaw Legislation ^ 
does hereby give its assent to the sectionizing and allotment 
of the lands in severalty, under the system of the United 
States, as provided for in the treaty of April, 1866, and the 
President of the United States is hereby requested to cause 
the same to be done as soon as may be practicable. 

Sec. 3. 

Be it further enacted, That the provisions contained 
in Article 3rd of the said treaty, giving the Chickasaw Leg- 
islature the choice of receiving and appropriating the three 
hundred thousand dollars therein named, for the use and 
benefit, or passing such laws, rules and regulations as will 
give all persons of African descent certain rights and privi- 
leges, be and it is hereby declared to be the unanimous con- 
sent of the Chickasaw Legislature, that the United States 
shall keep and hold said sum of three hundred thousand dollars 
for the benefit of the said negroes ; and the Governor of the 
Chickasaw Nation is hereby recjuested to notify the Gov- 
ernment of the United States that it is the wish of the Leg- 
islature of the Chickasaw Nation that the Government of 
the United States remove the said negroes beyond the lim- 
its of the Chickasaw Nation, according to the requirements 
of the 3d article of the Treaty of April 28th, 1866. Ap- 
proved October 17th, 1877. — (Laws of the Chickasaw Na- 
tion) pages 103-104. 

The act of 1873 adopting the Chickasaw Freedmen does 
not appear in the Revised. 



84 



LAWS OF THE CHICKASAW NATION, 
1878. 

AN ACT CREATING A CONVENTION TO CHANGE 
THE CONSTITUTION AND AMEND THE LAWS. 

ACT OF OCT. 17, 1877. 

Section i. Be it enacted by the Legislature of the 
Chickasaw Nation, That from and after the passage of tliis 
act, the Governor of the Chickasaw Nation shall appoint 
five men suitable for the purpose of amending the present 
Constitution and Laws, one man from each county, and a 
floater for the Nation; said floater to be chairman of the 
convention. 

Section 2. Be it further enacted, That the members of 
said convention shall have power to change or amend said 
Constitution, as they may consider necessary for the better 
government and general welfare of the citizens of the 
Chickasaw Nation, and conformable with the treaty stipu- 
lations of 1855 a"d 1866, between the United States of 
America and the Chickasaws. 

Section 3. Be it further enacted, That the said mem- 
bers of the convention shall have power to change or re- 
ject any or all existing laws, contrary to said treaties and 
to the Constitution which they are authorized to make or 
amend. 

Section 4. Be it further enacted, That the said new 
Constitution and amended laws shall be submitted to the 
people of the Chickasaw Nation, for tlieir approval or re- 
jection, by general ballot, at the most convenient time, to 
be specified in a proclamation of the Governor's to the 
people of the Chickasaw Nation. 

Section 5. Be it further enacted. That the Governor 



85 

shall have the said Constitution and Laws printed and dis- 
tributed to the people, previous to their submission to the 
people for their approval or rejection. 

Section 6. Be it further enacted, That if the said new 
Constitution and amended laws are adopted by the people 
of this Nation, the said Constitution and Laws shall be 
the Constitution and Laws of the Chickasaw Nation; but 
if the said Constitution and Laws should be rejected by the 
people, then the convention shall change or make them 
agreeable to the expressed wishes of the people. 

Section 7. Be it further enacted, That the members of 
the convention shall select their own place of meeting", 
governed by the will of the majority, and each member of 
the convention shall receive for his services, during the 
time occupied in the same, five dollars per day. 

Section 8. Be it further enacted. That the Governor 
is hereby authorized to draw five hundred dollars out of 
the Treasury of the Chickasaw Nation to pay for the trans- 
lation, printing and distribution of the said Constitution 
and Laws. 

Section 9. Be it further enacted. That the decision of 
the people in relation to the adoption or rejection of the 
said new Constitution and amended laws, shall be sent to 
the office of the National Secretary, like other election re- 
turns by the judges of elections of the different counties, 
and the result (of said elections) shall be made known to 
the Governor, who shall, in a proclamation, transmit the 
information to the people. 

Section 10. Be it further enacted. That the Governor 
be and he is hereby empowered to appoint one or more 
members of the convention to superintend the printing and 
correction of the same, as the Governor may direct. — 
(Laws of the Chickasaw Nation, pp. 104-105.) 

Approved Oct. 17, 1877. 



86 

(Note. — There is no evidence in the volume of any adop- 
tion, by tlie people, of any new or amended Constitution. ) 

FROM CONSTITUTION, TREATIES AND LAWS 
OF THE CHICKASAW NATION. 

Made and Enacted by the Chickasaw Legislature. 

1890. 

AN ACT REJECTING THE ADOPTION OF THE 
FREEDMEN IN THE CHICKASAW NATION. 

ACT OF OCT. 22, 1885. 

Whereas, The 3d article of the Treaty of 1866, between 
the United States and the Choctaw and Chickasaw Na- 
tions stipulates that the territory lying west of the 98th 
degree of west longitude, known as the Leased District, 
be ceded to the United States Government for ($300,- 
000.00) the consideration of three hundred thousand dol- 
lars, which sum shall be held in trust by the United States 
for said Nations, at a certain rate of interest, until each 
respective Nation elects within two years after the ratifica- 
tion of said Treaty, to make certain laws, rules and regu- 
lations giving the Freedmen once held as slaves by said 
Nation, the rights, privileges and immunities of citizenc of 
said Nations, except in their annuities and public domain, 
etc. 

And Whereas, It provides further, that if said laws, 
rules and regulations are not made within two years by 
said Nations from the ratification of aforesaid treaty, 
then the United States Government promises to remove 
within 90 days from the expiration of the two years of 
said Freedmen as are willing to remove from said Nations, 
using the aforesaid three hundred thousand dollars for the 



8; 

use and benefit of said Freedmen in their removal, etc., 
and those choosing to remain or who might return after 
removing to receive no part or benefit from the said three 
hundred thousand dohars, and shall be upon the same foot- 
ing as other citizens of the United States; 

And Whereas, The United States has failed to remove 
said Freedmen agreeable to the stipulations of said treaty 
and left them here among us for a long time, recognized 
by us as occupying the same status as other United States 
citizens. 

And Whereas, The Chickasaw people in justice to their ^ 
posterity have not made said laws, rules and regulations 
as provided for in the aforesaid article of said treaty for 
the following reasons, to wit : 

I St. That the Chickasaw people can not see any reason 
or just cause why they should be required to do more for 
their freed slaves than the white people have done in the 
slave holding States for theirs. 

2d. That it was by the example and teaching of the 
white man that we purchased, at enormous prices, their 
slaves and used their labor, and were forced by the result 
of their war to liberate our slaves at a great loss and 
sacrifice on our part, and we do not hold or consider our 
Nation responsible in nowise for their present situation, 
Therefore, 

Se;ction I. Be it enacted by the Legislature of the 
Chickasaw Nation, That the Chickasaw people hereby re- 
fuse to accept or adopt the Freedmen as citizens of the 
Chickasaw Nation upon any terms or conditions whatever, 
and respectfully request the Governor of our Nation to 
notify the Department at Washington of the action of the 
Legislature in the premises. 

Section 2. Be it further enacted, That the Governor is 
hereby authorized and directed to appoint two competent 



88 

and discreet men, of good judgment and business qualifica- 
tions to visit Washington City, D. C, during the next 
session of Congress and memorialize that body to provide 
a means for removal of the Freedmen from the Chickasaw 
Nation to the country known as Ok-la-ho-ma in the Indian 
Territory, or to make some suitable disposition of the 
Freedmen question so that they may not be forced upon 
us as equal citizens of the Chickasaw Nation. 

Section 3. Be it further enacted. That the Delegation is 
further authorized to apply to the Indian Department in 
Washington for an investigation and settlement of the 
Orphan, Incompetent, Misapplied and other claims of tlie 
Chickasaws against the United States Government, and 
any and all funds paid on account of siad claims, shall be 
received and receipted for the same as other monies coming 
into the Treasurer's hands from the United States Govern- 
ment. 

Section 4. Be it further enacted, That the Delegation 
is also authorized to represent the Chickasaws in any and 
all measures that might be presented or come before any 
branch of Congress, or the Indian Department, whereby the 
interest of our country and people may be involved, and 
use prudence and discretion in their deliberations upon 
such matters, and report the result of their mission at the 
next Legislature. 

Section 5. Be it further enacted. That for each dele- 
gate the sum of fifteen hundred dollars ($1,500) be and 
the same is hereby appropriated out of any monies in the 
Treasury not otherwise appropriated, as a full compensa- 
tion for their services on this mission ; and the Auditor 
is hereby authorized to issue a warrant for the same; and 
this Act take effect from and after its passage. — (Laws of 
the Chickasaw Nation, pp. 171-172-173.) 

Approved October 22, 1885. 



BD 1.4 8/>!6 



89 

Note : — Fleming v. McCurtain, decided November 8, y 
1909. 215 U. S., 56. 

(This case referred to in communication of Secretary of 
Interior to President.) 

This was a bill in equity brought by persons in the same 
class as the claimants against the Secretary of the Interior, 
McCurtain, chief of the Choctaws and others, on the theory 
that the plaintiffs had a vested right to allotments. The 
opinion states : 

"The Circuit Court examined the treaty and conveyance 
under which the plaintiffs claim, and held that they did not 
confer the rights alleged in the bill; that the right to share 
in the distribution depended on membership in one of the 
two tribes, except in the case of freedmen, specially provided 
for; that zuho were tneiJihers of the respective tribes and en- 
titled to enrollment as such iv^as a matter for Congress to de- 
termine; that Congress had adopted certain rolls when final- 
ly approved by the Secretary of the Interior; that the Sec- 
retary had acted and the plaintiffs had been excluded ; that 
his action was final, and that the court had no jurisdiction 
in the case. The demurrer to the jurisdiction was sus- 
tained, the bill was denied, and the plaintiffs appealed to 
this court." 

The Supreme Court affirmed the decision below and there 
is nothing in the opinion which can leave anyone to infer 
that had the plaintiffs been the full blood Indians of the 
C/ioc^aw-Chickasaw tribe who had been denied enrollment, 
the result would have been any different. 

This decision does not in any particular change the re- 
peated rulings of the United States Supreme Court that the 
grant of lands as a tribe or a nation is a grant of the usu- 
fruct or right of occupancy, subject to the rights of the 
United States as Lord Paramount, that no individual has a 
vested right therein and that when the nation or tribe is dis- 



90 

solved and the property formerly held as communal prop- 
erty is to be distributed, that Congress has the supreme 
power to determine the distribution, and if Congress de- 
temiines to distribute among the individual members of the 
former tribe, Congress alone has power to determine who 
are and who are not members of the tribe. 

The plaintiffs based their contention that a trust was cre- 
ated by the use of the word "descendants" in the Treaty 
of 1830. The court held that no trust was created, and the 
opinion appears to intimate that the Treaty of 1866 and not 
the Treaty of 1830, was the only limitation, if any, upon the 
power of Congress to distribute this property as it saw fit. 



NOTES ON THE CASE OF THE UNITED STATES 
AGAINST CHOCTAW NATION ET AL., DECIDED 
IN THE COURT OF CLAIMS, 38 C. C. Rpts., 558, on 
April 27, 1903, but the Supplementary Decree in which 
has only lately been rendered. 

I call the attention of the committee particularly to the 
above decision, which is the result of the reference to the 
Court of Claims of the controversy over the Chickasaw 
Freedmen, which reference was made by Act of July, 1902. 

The decision of the Court of Claims is particularly con- 
fined to the individuals who had been held in slavery, and 
yet by reason of the erroneous use of the word "freedmen" 
the attorneys for the Chickasaw tribe by treating the freed- 
men roll as a roll of former slaves have succeeded in getting 
a supplementary judgment against the United States, Janu- 
ary, 1910, for $606,936.08. A motion to modify this decree 
is now pending, but if Congress does not, at this session, 
remedy the erroneous legislation of 1902, not only the 



91 

rights of the free-born children will be destroyed, but the 
United States will actually be robbed^ for there is no other 
name for it, even though done under the forms of law, of 
$606,936.08. 














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